People v. Rainey , 2019 IL App (1st) 160187 ( 2020 )

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People v. Rainey, 2019 IL App (1st) 160187
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption VIDAL RAINEY, Defendant-Appellant.
District & No. First District, Third Division
No. 1-16-0187
Filed November 27, 2019
Rehearing denied January 22, 2020
Decision Under Appeal from the Circuit Court of Cook County, Nos. 12-CR-15811,
Review 12-CR-15812 12-CR-15813, 12-CR-15184, 12-CR-15815, 12-CR-
15833, 12-CR-15834, 12-CR-15835, 12-CR-15836, 12-CR-15837,
12-CR-15838, 12-CR-15839, 12-CR-16208, 12-CR-16209, 12-CR-
16210, 12-CR-16212, 12-CR-16213, 12-CR-16214, 13-CR-5854; the
Hon. Thaddeus L. Wilson, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Tiffany Boye Green, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and John E. Nowak, Assistant State’s Attorneys, of counsel), for the
People.
Panel PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion.
Justices McBride and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Defendant Vidal Rainey twice waived his right to counsel and, for a time, went pro se. He
revoked his first waiver after a month of going it alone; his second waiver, after two weeks.
When defendant demanded to represent himself a third time, on the eve of trial, the judge said
no. With his trial imminent, and his unwanted public defender at the helm, defendant pleaded
guilty to a raft of serious offenses, charged in 19 separate cases, all arising from his alleged
crime spree in the summer of 2012.
¶2 Defendant then moved to withdraw his guilty pleas. Those pleas were involuntary, he
argued, because his request for a third go at self-representation was improperly denied, thus
saddling him with the choice between pleading guilty or putting his trial in the hands of an
attorney he did not trust and did not want. The trial court denied the motion and explained, in
a written postplea order, why it had denied defendant’s request for self-representation. On
appeal, defendant contests that ruling and asks us to vacate his guilty pleas.
¶3 Defendant tested the limits of the trial judge’s forbearance with antics that were, by turns,
dilatory, obstructionist, and deeply offensive. We commend the judge’s patience and
scrupulous concern, through it all, for defendant’s sixth-amendment rights. And while
defendant correctly argues that some of the rationales offered in the court’s postplea order
violate settled sixth-amendment principles, we find that the record amply supports the denial
of his third request for self-representation. Indeed, the trial court made factual findings in the
postplea order that justify its ruling, even if defendant is correct that those factual findings
were not always properly tied into the court’s (sometimes flawed) legal analysis.
¶4 For one thing, we agree that defendant’s request was one more example of his “constant
efforts to delay the proceedings” and throw a monkey wrench into his prosecution. His pattern
of temporarily waiving counsel, only to ask for counsel back at the very next court date, made
clear that he had no intention of seeing his own representation through. The inevitable result,
if not the point, of his request was to delay his impending trial—just as he had done before.
What’s more, defendant’s disruptive, recalcitrant, and offensive behavior whenever he
represented himself in a hearing betrayed his inability to conduct his own trial with civility and
decorum. Because defendant’s request was properly denied, he cannot show that his guilty
pleas were involuntary.
¶5 BACKGROUND
¶6 Defendant racked up 19 indictments, charging him with aggravated criminal sexual assault,
aggravated kidnapping, numerous armed robberies, attempted home invasion, residential
burglary, battery of a police officer, and other offenses. For the first year or so of proceedings
in the trial court, defendant was represented by private counsel. When that relationship soured,
in August 2013, the trial court granted private counsel’s motion to withdraw and appointed the
public defender’s office. Assistant Public Defender (APD) Armando Sandoval took over
defendant’s cases.
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¶7 APD Sandoval had defendant evaluated by a forensic psychologist. The parties stipulated
that defendant was found fit to stand trial in January 2014. At the same hearing, defendant
pleaded guilty to delivery of a controlled substance. (That plea is not at issue in this appeal.)
But he rejected the State’s offer of an aggregate, below-the-minimum sentence of 40 years, in
exchange for his guilty pleas in his remaining cases, which are at issue here. And he
complained that his attorney had not shared any discovery with him. APD Sandoval explained
that he had tried to visit the day before, but he was unable to locate defendant in the jail at that
time. He assured defendant that he would visit again to review the discovery. Unassuaged,
defendant invoked his right of self-representation.
¶8 The trial judge warned defendant about the perils of self-representation, explained that
defendant would not have standby counsel or be permitted to change his mind during trial, and
admonished defendant about the charges and penalties in the State’s elected case. Defendant
said he understood all of this, and the judge accepted his waiver of counsel, finding it knowing,
voluntary, and intelligent.
¶9 Exactly one month later, at the start of the next status hearing, defendant told the judge that
he “rethought [his] situation.” He no longer wanted to represent himself, but he did not want a
public defender, either; instead, he wanted a “bar association lawyer.” But as the judge
explained to him, the court had no authority to appoint private counsel unless the public
defender’s office had a disabling conflict, and in this case, it did not. So defendant could have
a public defender, or he could represent himself. He chose a public defender, and APD
Sandoval was reappointed.
¶ 10 That appointment lasted about six months. On September 8, 2014, the parties appeared for
a final pretrial conference. Defendant demanded a second fitness evaluation. In response to the
judge’s inquiry, APD Sandoval said that he did not see any bona fide issue as to defendant’s
fitness, nothing of note having changed, from his perspective, since the last fitness evaluation
in January of that year. The judge denied defendant’s request, and defendant immediately
invoked his right of self-representation again.
¶ 11 As the judge noted, defendant purported to question his own fitness to stand trial, yet he
now insisted on conducting his trial himself. And this after acknowledging, the last time
around, that self-representation “wasn’t going to be a good idea.” Still, the judge obliged, while
also reminding defendant that his right to change his mind was not without its limits: “[W]e
can go through this process again, but that will be it. We will not go back and forth.” If
defendant chose to represent himself again, he would have to do so until the “conclusion of
trial at a minimum.” Defendant held fast, and after a fresh round of admonishments, the judge
accepted his second waiver of counsel.
¶ 12 Defendant’s first move was to ask for a transfer to Cook County Jail. Apparently he did
not have phone privileges in prison, which would make it that much more difficult for him to
prepare his own defense. The judge denied his request, explaining that defendant was legally
required, in his particular circumstances, to remain in the custody of the Department of
Corrections.
¶ 13 With the trial date only three weeks away, and appointed counsel now out of the picture,
the prosecutor tried to give defendant copies of the State’s motions in limine and proposed jury
instructions. But defendant up and left the courtroom. When security brought him back to the
courtroom, defendant launched into an offensive and highly demeaning tirade against the
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judge, calling him a “nigger,” a “fucking faggot,” and verbally abusing him in other ways that
we will describe in more detail later on.
¶ 14 The trial court tried to complete the final pretrial conference a week later, on September
15, 2014. Defendant appeared pro se and in shackles. He filed another motion to appoint a
private attorney, which the trial court denied. Defendant later announced that that he would
hire a private attorney. That was fine, the judge said, as long as the attorney would be ready
for trial as scheduled—on September 29, 2014, which was just two weeks away. Defendant
objected that the judge was “forcing [him] to trial,” and he demanded to have his case
transferred to a different courtroom, where his request for an extension would be
accommodated. The judge denied that request and reiterated numerous times that defendant’s
trial would commence as scheduled. Defendant insisted, at least as many times, that he would
not start trial on September 29. And he continued to demand another fitness evaluation.
¶ 15 Defendant’s conduct and attitude toward the judge, throughout the hearing, defies concise
paraphrase. So we will describe it in proper detail later, as our analysis demands it. Suffice it
to say for now that defendant continued to verbally abuse the judge, disrespect the court, and
stonewall the proceedings by refusing to cooperate even minimally. And he purported to blame
the judge for his alleged inability to cooperate, arguing that his wrist shackles made it
impossible for him to access his papers, even though it was clear to the judge that he was
perfectly capable of turning the pages when he wanted to. The judge warned him that his
conduct was jeopardizing not only his right to represent himself but also his right to be present
at trial.
¶ 16 Eight days later, on September 23, 2014—at what was supposed to be the final status
hearing before trial—defendant asked the trial court to reappoint the public defender’s office.
The judge agreed and struck the impending trial date.
¶ 17 APD Sandoval renewed defendant’s request for a second fitness evaluation, arguing that
defendant’s conduct at the September 8, 2014, hearing was so out of character that it raised
new concerns about his mental status. The judge was skeptical that defendant’s conduct had
anything to do with mental illness, given that he suddenly started throwing “temper tantrums”
shortly after his pro se requests (for a fitness evaluation and a transfer to the county jail) were
denied. But the judge agreed, perhaps out of an abundance of caution, to order a second
evaluation. A few weeks later, the parties stipulated that defendant was found fit to stand trial.
¶ 18 On the next court date, intended to be the final pretrial conference, defendant complained
to the judge that there was “a conflict of interest between me and my attorneys,” meaning that
they were “not on the same page” about matters of strategy. The judge told defendant to take
up the issue again with counsel. The court heard arguments on several motions, and responses
to State motions, that APD Sandoval had filed since being reappointed. With a jury trial
upcoming, on January 5, 2015, one last status date was scheduled for December 19, 2014.
¶ 19 At the outset of that status hearing, defendant tried to file two pro se motions, including
one to discharge his attorney. When the judge told him that he could not file any pro se motions
while he was represented by counsel, defendant said that he would simply discharge counsel
on his own. The judge responded, “No, you’re not. Your request for—to proceed pro se, again,
for the third time, is denied. You had the opportunity to go pro se.” And, the judge added, “It
is clear to the Court *** that you are not capable of representing yourself.”
¶ 20 Defendant’s second pro se motion, a motion to quash arrest and suppress evidence, was
not filed either, as counsel reviewed the motion and determined that it lacked a good-faith
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basis. As the judge turned to APD Sandoval to discuss some other pretrial matters, defendant
repeatedly insisted, “He is not representing me.”
¶ 21 When the trial date arrived, counsel sought a continuance, for the purpose of amending a
previously filed motion to exclude some of defendant’s alleged statements. During discussion
of the issues raised in that motion, counsel asked to pass the case. When the parties came back
on the record, counsel informed the court that defendant had accepted a plea offer. The trial
court admonished defendant and found that his guilty pleas, entered in exchange for an
aggregate sentence of 40 years, were knowing and voluntary.
¶ 22 Defendant timely filed a pro se motion to withdraw his guilty pleas. After the trial court
denied that motion, the public defender filed a motion to reconsider, arguing that the court had
failed to appoint postplea counsel, pursuant to Illinois Supreme Court Rule 604(d) (eff. Jan. 1,
2013). The trial court then appointed a new assistant public defender, who filed a Rule 604(d)
certificate and an amended motion to withdraw defendant’s pleas. Among other things, the
motion argued that the trial court erred in denying defendant’s request to represent himself
based on his lack of legal ability and that the denial of his right to self-representation rendered
his pleas involuntary. The trial court denied the amended motion and issued a written postplea
order. This appeal followed.
¶ 23 ANALYSIS
¶ 24 Defendant argues that the trial court improperly denied his request for round three of self-
representation. As a result, he was forced to choose between pleading guilty and going to trial
with an unwanted attorney in charge of his defense. Because that rendered his guilty pleas
involuntary, he should be allowed to withdraw them and represent himself at a trial.
¶ 25 I
¶ 26 One preliminary point. Defendant’s request to withdraw his guilty pleas assumes that the
following argument is valid: If his request to waive counsel (a third time) was improperly
denied, the resulting deprivation of his sixth-amendment right of self-representation rendered
his guilty pleas involuntary. The basic idea is that the pleas were coerced, as it were, by
depriving him of his fundamental right of self-representation.
¶ 27 That is, by no means, an obvious proposition. And it appears to be an issue of first
impression for Illinois courts. Neither party cites, and we have not found, any Illinois case that
answers the question presented head-on. Defendant does cite a handful of Illinois cases in
which guilty pleas were found involuntary, but not one of those cases addresses the issue
presented here or merits any detailed discussion.
¶ 28 The federal courts of appeals have split on this question. One circuit, in a case defendant
cites, has held that a denial of the right of self-representation automatically renders a guilty
plea involuntary. United States v. Hernandez, 203 F.3d 614, 626 (9th Cir. 2000).
¶ 29 Other circuits have held either that it does not or that a defendant who pleads guilty waives
any challenge to the alleged error. United States v. Dewberry, 936 F.3d 803, 805-06 (8th Cir.
2019); United States v. Montgomery, 529 F.2d 1404, 1406-07 (10th Cir. 1976) (contrary rule
would “open the door to manipulations and gamesmanship”); see also Gomez v. Berge, 434
F.3d 940, 942-43 (7th Cir. 2006) (by pleading guilty, defendant waived argument that he was
incompetent to represent himself).
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¶ 30 Defendant’s contention is at least an arguable one; “fairminded jurists could disagree,” and
have disagreed, about its legal merits. See Werth v. Bell, 692 F.3d 486, 497 (6th Cir. 2012)
(declining to answer this question where appeal could be resolved on other grounds). And the
State makes no effort to dispute it. But the State’s acquiescence does not bind us; it just leaves
the issue unjoined and largely unbriefed. See People v. Horrell, 235 Ill. 2d 235, 241 (2009)
(reviewing court not bound by party’s concession).
¶ 31 Because we ultimately conclude that the trial court properly denied defendant’s request,
we think this question is best left for another day, when it has been fully briefed and is
necessary to the resolution of the appeal. For now, we will assume without deciding that
defendant’s guilty pleas would be involuntary if his request to represent himself was
improperly denied.
¶ 32 II
¶ 33 We turn to defendant’s claim of error in the trial court’s denial of his request for self-
representation. We review that ruling for an abuse of discretion. People v. Burton, 184 Ill. 2d
1, 25 (1998); People v. Hunt, 2016 IL App (1st) 132979, ¶ 16. A court abuses its discretion
when its ruling is “arbitrary and without a logical basis.” Hunt, 2016 IL App (1st) 132979,
¶ 16.
¶ 34 A
¶ 35 When defendant asked for a third crack at self-representation, the judge told him, “It is
clear to the Court *** that you are not capable of representing yourself.” Defendant’s
arguments on appeal focus principally on this statement. And it warrants an extended
discussion, as the statement is more nuanced than it might appear, given the court’s later
explanation of its meaning in the postplea order. But first, we turn to what the court identified,
in that postplea order, as the “actual basis” for denying defendant’s request: that it was not a
“clear and unequivocal” waiver of his right to counsel.
¶ 36 The trial court was correct, of course, that a waiver of counsel must be “clear and
unequivocal, not ambiguous.” People v. Baez, 241 Ill. 2d 44, 116 (2011); see also Faretta v.
California, 422 U.S. 806, 835 (1975). A criminal defendant has two mutually exclusive sixth-
amendment rights—the right to assistance of counsel and the right of self-representation. Given
our concern for the protection of a defendant’s fundamental right to a fair trial, our system
defaults to assistance of counsel and will indulge every reasonable presumption against waiver
of counsel. Brewer v. Williams, 430 U.S. 387, 404 (1977); Burton, 184 Ill. 2d at 22. So
defendants who wish to depart from that default option must say so “clear[ly] and
unequivocal[ly].” Burton, 184 Ill. 2d at 22; Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
¶ 37 The requirement of clarity prevents gamesmanship. By requiring a defendant to be clear
about a request for self-representation, we forestall any “ ‘effort to sandbag the court and the
opposition, to seek an acquittal with an ace up the sleeve to be whipped out in the event of
conviction.’ ” Burton, 184 Ill. 2d at 22 (quoting Cain, 972 F.2d at 750); see also United States
v. Tompkins, 623 F.2d 824, 828 (2d Cir. 1980) (requirement prevents defendant from
“consciously scheming to create a ground for reversal”).
¶ 38 If an ambiguous request or mere reference to self-representation were enough, a defendant
could place the trial court in a trick bag of sorts: If the court responded to the defendant’s
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statement by leaving appointed counsel in place, the defendant could claim on appeal that his
right of self-representation was violated; if the court responded by dismissing counsel and
allowing the defendant to proceed pro se, the defendant could claim his right to counsel was
violated. In other words, no matter how the trial judge resolved the ambiguity in the
defendant’s statements, the defendant would always have a colorable argument on appeal that
the resolution violated one of his sixth-amendment rights and thus that he is entitled to another
chance to seek an acquittal with his preferred representation. See Burton, 184 Ill. 2d at 22.
¶ 39 The requirement of a clear waiver thus prevents a defendant from weaponizing his sixth-
amendment rights on appeal. If the defendant is silent on, or ambiguous about, his desire to
represent himself, his right of self-representation has not been violated; the rules at trial and on
appeal are known from the start. See Baez, 241 Ill. 2d at 116; People v. Mayo, 198 Ill. 2d 530,
538 (2002); Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989).
¶ 40 So if a defendant raises the notion of self-representation in a way that falls short of a clear
request to invoke that right, the court does not abuse its discretion in leaving the default option
of counsel in effect. See, e.g., Burton, 184 Ill. 2d at 21-23; People v. Brooks, 75 Ill. App. 3d
109, 110 (1979) (defendant did not waive counsel when he stated that he did not need counsel
“ ‘at this present time’ ” in order to avoid continuance at preliminary hearing and never
renewed request); Reese v. Nix, 942 F.2d 1276, 1281 (8th Cir. 1991) (defendant did not invoke
right to self-representation through isolated, offhand statement expressing frustration at trial
court’s denial of request for new counsel).
¶ 41 With all of this in mind, we turn to the December 19, 2014, hearing, where the trial court
denied defendant’s third request for self-representation, to determine whether defendant’s
request was clear.
¶ 42 At the start of that hearing, defendant tried to file two pro se motions, including one to
discharge counsel, but the court told him he could not file pro se motions while represented by
counsel. Defendant said, “Okay, then I am discharging him.” The court replied, “No, you’re
not. Your request for—to proceed pro se, again, for the third time, is denied. You had the
opportunity to go pro se.” Only moments later, the court and defendant engaged in this back-
and-forth exchange:
“THE DEFENDANT: He not [sic] representing me no more.
THE COURT: He represents you.
THE DEFENDANT: He not [sic] representing me.
THE COURT: Well, he is representing you.
THE DEFENDANT: He is not representing me.
THE COURT: He is representing you in this case.
THE DEFENDANT: He is not representing me.”
¶ 43 Defendant’s request (more of a demand, in this case) for self-representation was perfectly
clear. We say this, in large part, because it was perfectly clear to the judge, at the time, what
defendant was requesting. Without hesitation, or any further inquiry, the judge took
defendant’s statement to be a “request *** to proceed pro se, again, for the third time.” And
that is proof enough that the waiver was clear. See Freeman v. Pierce, 878 F.3d 580, 587 (7th
Cir. 2017) (waiver of counsel clear and unequivocal when record showed that judge understood
defendant’s motion to be request for self-representation). Adding in the fact that defendant
then repeatedly claimed that his lawyer was discharged—however much the judge tried to tell
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him otherwise—we do not see how defendant’s statements to the court could be viewed as
anything but a clear request to discharge counsel and appear pro se.
¶ 44 But the requirement is that the waiver of counsel be “clear and unequivocal, not
ambiguous.” Baez, 241 Ill. 2d at 116. To be sure, the phrase “clear and unequivocal” is often
discussed in cases as if those two adjectives are synonymous, a legal couplet like “aid and
abet,” “arbitrary and capricious,” “willful and wanton,” or the like. We put the word “and”
between the words as if they are independent requirements, but we do not really mean that.
(We daresay that no court has ever held that a ruling was capricious but not arbitrary, that a
defendant abetted a coconspirator but did not aid him, that a defendant’s conduct was wanton
but not willful.)
¶ 45 But the phrase “clear and unequivocal” does not fall into that category. A defendant’s
request may be clear, but in the overall context of the proceedings, it still may be viewed as
equivocal. See Burton, 184 Ill. 2d at 22-23 (waiver of counsel must be considered within “the
overall context of the proceedings”). A defendant could clearly request self-representation, as
here, but the circumstances may reveal that a defendant has constantly waffled back and forth
on the matter, whether inadvertently or strategically, requesting self-representation every time
a legal ruling did not go his way or every time a trial date approached, only to quickly change
his mind upon being required to actually undertake his defense without a lawyer. That is not
every case—it is not most cases—but in that context, the trial judge should have discretion to
see things for what they are and assert some control over the matter.
¶ 46 Indeed, in an oft-cited passage, our supreme court has written that the requirement of a
clear and unequivocal waiver “prevent[s] 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.” Mayo, 198 Ill. 2d at 538. That is exactly what happened here. That was not the state
of affairs in Mayo, where the supreme court stated that point only generally, nor has it been
the fact pattern of any published decision in Illinois. Even though we have cited that phrase
repeatedly in case law, we have never had reason to apply it.
¶ 47 We do now. Our supreme court in Mayo relied for this oft-quoted passage on the decision
in Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994). There, the court put a finer point on this
particular topic. The court first noted, as most courts have, that one of the reasons for the clear-
and-unequivocal requirement is to avoid the gamesmanship we discussed above, where
ambiguity could allow the defendant to claim a sixth-amendment violation (a denial of counsel
or a denial of self-representation) no matter how the trial court ruled. Id. at 100-01. But the
court also noted as follows:
“Of course, when a defendant changes his mind after trial begins, or does so repeatedly
at any stage, a court may find that the conduct is manipulative or abusive in some other
way. If so, the conduct can be considered vacillation, and a trial judge may find the
request equivocal.” (Emphasis added). Id. at 101.
¶ 48 It is in that sense, then, that no matter how “clear” a defendant’s request for self-
representation may be, the requirement that it also be unequivocal “prevent[s] 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.” Mayo, 198 Ill. 2d at 538 (citing Williams, 44 F.3d at
100-01); see also Williams, 44 F.3d at 101 (requirement “inhibits any ‘deliberate plot to
manipulate the court by alternatively requesting, then waiving counsel’ ” (quoting Tompkins,
623 F.2d at 828)).
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¶ 49 A defendant has the right to choose between counsel and self-representation, and he has
the right (at least generally speaking) to change his mind more than once. But he does not have
an evergreen right to change his election back and forth, no matter how “clearly” he conveys
each successive choice to the court. United States v. Reddeck, 22 F.3d 1504, 1510-11 (10th
Cir. 1994) (once defendant makes his election, “he does not have an unlimited right to
thereafter change his mind and seek the other path of representation”); People v. Jones, 2015
IL App (2d) 120717, ¶ 36 (“Once a defendant is granted the right to proceed pro se, he does
not have an unequivocal right to revoke his pro se status.”).
¶ 50 In particular, the defendant may not play a “cat and mouse game” with the court by
repeatedly demanding to change his election in pursuit of some tactical advantage to which he
is not entitled; if he does, the judge may find that his request for self-representation is
vacillating and abusive and thus equivocal. (Internal quotation marks omitted.) See Reddeck,
22 F.3d at 1510.
¶ 51 We will not try to catalog all the abusive ends to which a defendant might invoke his sixth-
amendment rights. But one example of such gamesmanship is both obvious and germane to
this case: delay. If a defendant could switch his sixth-amendment election whenever and as
often as he liked, he could delay the trial proceedings at will and, in the extreme case,
indefinitely. He could thus frustrate the effective prosecution of his case by the simple
expedient of changing, or purporting to change, his mind. The rights guaranteed by the sixth
amendment may not be used as a weapon to cause delay. See Martinez v. Court of Appeal of
California, 528 U.S. 152, 162 (2000) (judicial interest in “efficiency of the trial at times
outweighs the defendant’s interest in acting as his own lawyer”); United States v. Powell, 847
F.3d 760, 774-75 (6th Cir. 2017) (courts “balance” defendant’s interest in self-representation
against “delay, defense gamesmanship, and other practical concerns” (internal quotation marks
omitted)); People v. Garcia, 2017 IL App (1st) 133398, ¶¶ 52-56 (affirming denial of pro se
request where defendant “vacillat[ed]” between counsel and self-representation, and trial court
found he “was seeking to delay proceedings by flip-flopping”); People v. Gibson, 2017 IL App
(1st) 143566, ¶ 25 (court may deny request to revoke waiver of counsel if it finds defendant is
trying to delay proceedings); Jones, 2015 IL App (2d) 120717, ¶ 36 (same).
¶ 52 In the postplea order, the court ruled that “Defendant did not ‘clearly and unequivocally’
assert his right to represent himself because he was gaming the system and trying to delay his
trial ***.” Elsewhere, the court referenced defendant’s “constant efforts to delay the
proceedings” and “obstruct his trial.” The trial court, having observed defendant’s conduct
first-hand for more than two years, thought that defendant’s third request to go pro se was part
of a pattern and scheme to delay his trial. That finding is supported by the record and is a
legitimate basis for deeming defendant’s request equivocal.
¶ 53 The first two times that defendant requested to proceed pro se, he quickly changed his
mind, requesting the reappointment of counsel at the very next hearing date. The trial court
could have reasonably viewed defendant’s history as impulsively dismissing counsel when
things did not go his way, only to come to his senses almost immediately and reverse his
election. That information, if not perhaps an independent basis for denying a third request for
self-representation by itself, surely could have provided some context and color to the trial
court’s impression when defendant raised a third request for self-representation.
¶ 54 But more importantly, while the first flip-flop did not impact the trial date, the second one
did. Recall the circumstances of defendant’s second request for self-representation. After APD
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Sandoval was first reappointed (following defendant’s first round of waiver and revocation),
he spent six months preparing for trial before defendant demanded to take over his own defense
a second time—at what was supposed to be the “final” pretrial conference on September 8,
2014.
¶ 55 After demanding a second chance at self-representation, defendant immediately derailed
the final pretrial conference by leaving the courtroom, refusing to participate in the hearing
even after court security brought him back, and launching into a highly offensive tirade against
the judge (and, to a lesser extent, his public defender). We will have more to say about that
tirade later, but suffice it to say for now that the court could have reasonably construed
defendant’s conduct as an attempt to delay and manipulate the proceedings, among other
things, by contriving a basis for the second fitness evaluation that defendant had just demanded
but which the court had just denied.
¶ 56 One week after that hearing, defendant appeared pro se at the court’s renewed attempt to
hold a “final” pretrial conference and again asked for a bar association lawyer, a request the
court again denied. Defendant then insisted, time and again throughout the hearing, that his
trial would not proceed as scheduled, accusing the judge of “forcing [him] to trial” prematurely
(if also two years since his arraignment). As defendant bluntly put it, “You got to be crazy to
think I’m fittin’ to start a trial.”
¶ 57 After initially (and begrudgingly) acknowledging that he was still representing himself,
given that he could not have a bar association lawyer, defendant later told the court that he
would not proceed pro se any longer, that he would hire a new private attorney—who would
of course need a continuance to get up to speed on the case. As the judge held firm to the trial
date, defendant tried whatever other tactics he could muster to delay it, such as demanding a
transfer of his case to a different judge (who would of course need time to review the extensive
pretrial motions that had been filed) and continuing to demand another fitness evaluation. And
defendant threw another tantrum in court—this one significantly longer and more drawn out
than the first—willfully refusing, for a second time, to participate in a critical pretrial hearing,
and stonewalling the judge’s efforts to prepare the case for trial at every turn. (More on this
conduct later.)
¶ 58 When all else failed, eight days later, defendant revoked his second waiver of counsel and
asked the judge to reappoint the public defender’s office. The judge agreed and, due to the
delay and imposition on counsel, struck the upcoming trial date. On top of that delay, since
defendant’s conduct had been so egregious and unhinged, the court (against its initial instincts
and perhaps out of an abundance of caution) acquiesced in the demand for a second fitness
evaluation, thus delaying the trial by several more weeks.
¶ 59 In the end, defendant did not get the private attorney he wanted, but through his antics, he
did manage to delay his trial.
¶ 60 So when, three months later, defendant kicked off yet another “final” pretrial hearing by
demanding to waive counsel a third time, the judge had every reason to believe that he was
just trying to delay his upcoming trial once more. Considering that this request was made on
December 19, 2014, and given the intervening winter holidays and new year, this request was
made, for all practical purposes, on the eve of the January 5, 2015, trial date.
¶ 61 Given defendant’s alternating positions and the eleventh-hour timing of his request, his
third demand for self-representation could be reasonably deemed vacillating and dilatory. See
United States v. Bennett, 539 F.2d 45, 49-51 (10th Cir. 1976) (request for self-representation
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vacillating where defendant repeatedly alternated between requests to represent himself and to
serve as cocounsel until six days before case was set for trial). Indeed, any request for self-
representation—even a first request, much less a third request—may be deemed belated and
dilatory if it is made “just before the commencement of trial” or “after meaningful proceedings
have begun.” Burton, 184 Ill. 2d at 24 (citing cases).
¶ 62 Defendant contests this finding. He demanded self-representation, he says, not to delay his
trial but to file a pro se motion to suppress. (Counsel had deemed the motion meritless and thus
refused to file it.) Given its sordid history with defendant, however, the trial court could have
reasonably concluded that defendant was merely using that supposed disagreement with
counsel as his excuse du jour for a delay of the trial date.
¶ 63 We should be clear that a cautious judge should be circumspect about denying a request
for self-representation—even a repeated one. If it happens early enough in the case that a
defendant’s flip-flopping is not delaying the trial or seriously impacting the timing of the case,
a trial court should think hard about acceding to the defendant’s request. The trial court did
that very thing here, to its credit. But when it came to the third request for self-representation,
the trial date was imminent—for the second time—and defendant’s history of flip-flops and
other delay tactics had reached a stage where the trial court was more than justified in putting
a halt to matters.
¶ 64 In sum, the trial court did not abuse its discretion in ruling that defendant’s request for self-
representation was not clear and unequivocal. It may have been clear, but it was not
unequivocal. We uphold the trial court’s ruling.
¶ 65 B
¶ 66 Given our conclusion above, we need not examine every basis on which the court found
the request to be less than a “clear and unequivocal” waiver of counsel. But we would be remiss
not to point out one clear error of law, if only because it keeps surfacing in the cases. The trial
court found that defendant did not really want to represent himself because his first choice was
a private attorney over an assistant public defender, with self-representation only his fallback
option. The court thus viewed defendant’s request for self-representation as equivocal because
it was conditional—his second choice, not his preference. The case law has held that line of
reasoning to be reversible error.
¶ 67 The record certainly supports the trial court’s finding that, if defendant had his druthers,
the judge would have appointed a private attorney to represent him. But a request for self-
representation is not unclear or equivocal merely because it was a fallback to the defendant’s
first but unavailable choice of private counsel. See, e.g., Freeman, 878 F.3d at 588-89 (granting
federal habeas relief and rejecting Illinois courts’ reasoning that self-representation request
was equivocal where defendant moved to “remove or replace” public defender); Williams, 44
F.3d at 100 (“[A] defendant is not deemed to have equivocated in his desire for self-
representation merely because he expresses that view in the alternative [and] simultaneously
requests the appointment of new counsel ***.”); Adams, 875 F.2d at 1445 (“[w]hile
[defendant’s] requests no doubt were conditional, they were not equivocal,” where he
“repeatedly indicated his desire to represent himself if the only alternative was the appointment
of [his public defender]” (emphasis in original)); Johnstone v. Kelly, 808 F.2d 214, 216 n.2 (2d
Cir. 1986) (“A request to proceed pro se is not equivocal merely because it is an alternative
position, advanced as a fallback to a primary request for different counsel.”).
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¶ 68 That is to say, if the request for self-representation is a second choice, behind an option
that the trial court cannot and will not give the defendant (the appointment of private counsel),
the request for self-representation remains a clear and unequivocal request. A diner’s request
for the fish is no less clear or unequivocal, even if it came only after learning that her first
choice of steak was sold out for the evening.
¶ 69 But that does not change the fact that we have an independent basis for affirming the trial
court’s judgment, and we do so.
¶ 70 III
¶ 71 We return now to the trial court’s remark, at the time of denying defendant’s request, that
he was “not capable of representing [him]self.” Defendant’s arguments on appeal focus
primarily on this statement. As defendant understands it, the court meant to convey that it was
denying defendant’s right of self-representation because he lacked the legal ability to conduct
a defense.
¶ 72 That would be a clear legal error. The decision in Faretta, 422 U.S. at 835-36, clearly
establishes that a request for self-representation may not be denied on that basis. And
defendant’s complaints are not off the mark. In the course of explaining its finding that
defendant was not capable of representing himself, the trial court did say in the postplea order
that defendant “failed miserably in presenting his pro se motions.” So we must agree with
defendant that concerns about defendant’s legal ability were at least lingering in the judge’s
mind.
¶ 73 But the order made clear that the trial court also meant something very different: that
defendant was “not capable of representing himself in the dignified manner expected of parties
appearing before the Court, pro se or otherwise.” And the order was not the first time the trial
court made this point. In the midst of defendant’s second courtroom tantrum, at the September
15, 2014, hearing, the judge remarked, “Obviously you cannot conduct yourself properly in
court.”
¶ 74 A defendant’s lack of civility and decorum, unlike his lack of legal ability, is a valid basis
for denying his request for self-representation. “The right of self-representation is not a license
to abuse the dignity of the courtroom.” Id. at 834 n.46. Thus, when a pro se defendant
“deliberately engages in serious and obstructionist misconduct,” the judge may “terminate” his
self-representation. Id.; People v. Rohlfs, 368 Ill. App. 3d 540, 545 (2006). Or, by the same
logic, it may deny a later request to represent himself again; the fact that the defendant had
revoked his previous waiver of counsel between his misconduct and his current request should
make no difference to the analysis.
¶ 75 The kind of misconduct that would justify imposing counsel on an unwilling defendant is,
in essentials, the same kind of misconduct that would justify excluding him from his trial. See
Faretta, 422 U.S. at 834 n.46 (citing Illinois v. Allen, 397 U.S. 337 (1970)); United States v.
Brock, 159 F.3d 1077, 1079 (7th Cir. 1998). A defendant forfeits his right to be present at trial
“if, after he has been warned by the judge *** he nevertheless insists on conducting himself in
a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried
on with him in the courtroom.” Allen, 397 U.S. at 343. Just as the judge may exclude a
“ ‘disruptive, contumacious, stubbornly defiant defendant[ ]’ ” from his trial, so too may the
judge deny such a defendant the right to continue representing himself. Brock, 159 F.3d at
1079 (quoting Allen, 397 U.S. at 343).
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¶ 76 Forfeiture is strong medicine when the right to be nixed is a fundamental one, guaranteed
by the sixth amendment. And so a trial judge must be prepared to endure at least some irritating,
foolish, unprofessional, or “ ‘occasionally wacky’ behavior” from a pro se defendant. United
States v. Smith, 830 F.3d 803, 810 (8th Cir. 2016) (quoting United States v. Johnson, 610 F.3d
1138, 1144 (9th Cir. 2010)). A rough-around-the-edges demeanor, not at all unusual for a
pro se defendant, will not justify a denial of this right; some unprofessionalism must be
tolerated unless the defendant’s conduct is so defiant, disruptive, or disrespectful that it
“threaten[s] to forestall” the proceedings. Id.; Brock, 159 F.3d at 1080; see Allen, 397 U.S. at
343.
¶ 77 A defendant’s pretrial misconduct, while appearing pro se, may justify a denial of his right
to conduct his own defense. See Rohlfs, 368 Ill. App. 3d at 545; Smith, 830 F.3d at 810; Brock,
159 F.3d at 1079-81. But courts are especially cautious, and rightfully so, about denying a
defendant’s fundamental trial rights on account of his conduct before trial. See, e.g., Smith,
830 F.3d at 810 (definition of misconduct should not be “unduly expanded” in pretrial context).
A trial judge should not, for example, ever seriously consider forcing an unwanted attorney on
an intemperate, perhaps frustrated, pro se defendant who lets slip an everyday profanity or two
at a status hearing.
¶ 78 Rather, the pretrial misconduct must provide a strong indication that the defendant would
continue to disrupt and forestall the proceedings, including the trial, if allowed to continue his
own defense. See id. at 810-11 (citing cases). Thus, courts generally require a persistent pattern
of pretrial misconduct, and not just a single, isolated instance, before denying a defendant the
right of self-representation. Compare, e.g., People v. Sheley, 2012 IL App (3d) 090933, ¶¶ 26-
27 (one “isolated incident that transpired after the trial court’s adverse rulings” did not justify
denying self-representation), with Brock, 159 F.3d at 1081 (denial of self-representation
upheld where obstructionist misconduct “persisted even after several contempt citations”).
¶ 79 In Brock, 159 F.3d at 1080-81, the defendant, appearing pro se at multiple pretrial hearings,
refused to answer the court’s questions or cooperate with the proceedings, and at one point, he
even “stormed out of the courtroom” when the judge issued an adverse ruling on his motion.
By stonewalling the court, making it extremely difficult for the judge to resolve some pertinent
pretrial matters, the defendant thus forfeited his right to represent himself. Id. at 1081. These
factors—and more—are present here, too.
¶ 80 Defendant’s conduct was seriously obstructionist on two occasions: the pretrial hearings
on September 8 and 15, 2014, immediately after the trial court granted his request to proceed
pro se a second time. Notably, these were the only hearings at which defendant had any
substantive responsibility for conducting his own defense in court. (The first time he waived
counsel, he immediately revoked his waiver at the start of the next court date.) The judge could
thus take defendant’s conduct at these hearings to be indicative of how he would continue to
behave if allowed to proceed without an attorney to hold him in check.
¶ 81 Take the September 8, 2014, hearing, the trial court’s first attempt to conduct a final pretrial
conference. After the trial court denied defendant’s request for another fitness evaluation, a
request that counsel had refused to back, defendant discharged his public defender. Now
pro se, he asked the trial court to transfer him to county jail, where he supposed he could
conduct his own defense more effectively than from prison. The trial court denied that request,
too. At the same time, the State tried to hand defendant copies of its motions in limine and
proposed jury instructions, all of which were slated for argument and ruling that day. So now
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was the time for defendant to take charge of his own defense, as he had asserted his right to
do, by contesting the State’s positions. Instead, like the defendant in Brock, 159 F.3d at 1080-
81, he not only refused to cooperate with the proceedings, he left the courtroom altogether.
¶ 82 And when security brought him back, he still refused to participate meaningfully in the
hearing. Quite the opposite: He launched into a tirade, hurling an onslaught of deeply offensive
slurs at the judge. His public defender got much the same treatment, albeit to a lesser degree.
We will let defendant’s words speak for themselves:
“THE DEFENDANT: I don’t want to hear that shit, man. Fuck everybody.
THE COURT: The defendant—
THE DEFENDANT: Man, I ain’t trying to hear that shit. I ain’t trying to hear
shit. I ain’t trying to hear that shit he got to say. I ain’t trying to hear shit he got to say.
He might as well go on ahead and say what he got to say. I ain’t listening to shit. Fuck
out of here. I just told you.
THE COURT: Additional guards from IDOC had to gather—
THE DEFENDANT: Fuck you. Clown ass faggot.
THE COURT: —the defendant from the back from making—
THE DEFENDANT: Get your goofy ass on.
THE COURT: —multiple disruptions.
THE DEFENDANT: Fuck you.
THE COURT: And—
THE DEFENDANT: Gay ass man.
THE COURT: —profanities towards the Court.
THE DEFENDANT: Fuck out of here, bitch ass.
THE COURT: And defendant also—
THE DEFENDANT: Might as well charge me with another case. Fuck you.
THE COURT: —has—it should be noted for the record that the defendant—
THE DEFENDANT: I told you not to bring me back out here, man. Fuck out of
here.
THE COURT: That the defendant was serving his parole—
THE DEFENDANT: I ain’t about to finish shit. Fuck you and all these—every
motherfucker in this courtroom, fuck y’all.
THE COURT: —while incarcerated in Cook County jail because of additional
items—
THE DEFENDANT: Y’all don’t want to do shit for me. A fucking week stay, get
your gay ass out of here. You say deny, deny, deny every motherfucking thing I got
coming. Fuck you. I don’t want you to rule over shit, shit that’s going on with me.
THE COURT: —complaints in jail, he was taken back into—
THE DEFENDANT: No taking back shit. Fuck you.
THE COURT: —IDOC custody.
THE DEFENDANT: Fuck on. Fucking faggot.
THE COURT: Now, what was that date?
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THE DEFENDANT: Monday.
THE PROSECUTOR: Monday, the 15th, Judge.
THE COURT: Motion defendant.
THE DEFENDANT: All of that for that. I just told y’all, I had my court date
already. Fucking goofy. I’ll never come back in this courtroom again. You might as
well find me guilty right now for everything.
THE COURT: For the final pretrial conference.
THE DEFENDANT: Fuck out of here. Goofy ass people, man. Sandoval faggot
ass. Y’all might as well find me guilty right here, right now. I’ll never come back in
this courtroom. Fuck y’all.
THE COURT: We will continue the trial whether—
THE DEFENDANT: Continue it. Find me guilty.
THE COURT: —you’re here or not.
THE DEFENDANT: Fuck is you talking about. Find me guilty on every case. Give
me life on every case. Fuck you, dude.
THE COURT: It appears that perhaps you are—
THE DEFENDANT: Man, fuck you, and whatever you’re saying. Fuck you.
You’re a faggot.
THE COURT: And any condition to represent yourself, we will address that matter
again on the next court date.
THE DEFENDANT: I just told you I need a psyche eval, you denied me a fucking
psyche eval.
THE COURT: That is denied.
THE DEFENDANT: You fucking faggot. Fuck you and your denial. I’ll never
come back in your courtroom again, bitch.
THE COURT: Please understand, sir.
THE DEFENDANT: Fuck you. I ain’t understanding shit. You fucking faggot.
THE COURT: If you—
THE DEFENDANT: Fuck you.
THE COURT: If you fail to come to court—
THE DEFENDANT: Fuck you. Fuck you. I ain’t trying to hear that shit.
THE COURT: —we can proceed to trial in your absence, and if you’re found
guilty—
THE DEFENDANT: Fuck you and if found guilty. Find me guilty right now.
THE COURT: —you could be sentenced in your absence. Thank you.
THE DEFENDANT: You fucking fag. Bitch ass nigger.”
And with that, the trial court adjourned for the day.
¶ 83 So defendant could hardly complain when the judge ordered him shackled the next week,
on September 15, 2014, as the court tried to complete the final pretrial conference that
defendant had derailed with his antics. But the shackles did little to chasten him or secure his
meaningful cooperation with the proceedings.
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¶ 84 It is not just that defendant insisted on sitting or standing at his own leisure, rather than as
the judge told him to. Or that roughly 80 pages of transcript from the hearing are laced with
his incessant profanity. More than that, defendant made it utterly clear that he had no intention
of cooperating with the proceedings or showing any modicum of respect for the court. There
are far too many examples of defendant’s disruptive and disrespectful conduct at the hearing
to discuss them all. So we will confine ourselves to a representative sample.
¶ 85 Defendant did whatever he could to stonewall the judge’s efforts to resolve outstanding
trial preparation matters. During the jury instruction conference, for example, defendant simply
refused to answer the judge’s questions. Instead, he flatly insisted, “I don’t know what the fuck
you are talking about.” And he was at a total loss, he insisted, because the judge had put him
in shackles, leaving him unable to “go through [his] paperwork.” It was clear to the judge,
however, that defendant could flip through the pages just fine when he wanted to. (As the judge
remarked, “You just flipped them. You just handled those other papers,” or “Those same hands
that you keep grabbing your papers with—”.) Rather, defendant was just refusing to cooperate
even minimally with the proceeding. Lest there be any doubt about that, defendant put the point
bluntly: “I ain’t no flipping nothing.”
¶ 86 Numerous times, the judge asked defendant if he had any objections to a State instruction
or motion, and defendant responded that he was “objecting to everything that you’re saying.”
When asked to provide a basis for his blanket objections—which registered little more than a
continued refusal to take part in the proceeding—defendant would respond that even “If [he]
did have a basis, it wouldn’t mean nothing” or “[i]t don’t matter” because whatever defendant
might say, this “goofy” judge would rule against him anyway. So when asked, “What do you
wish to do with respect to this motion?” defendant just shrugged off the question and said,
“Whatever you want to do.” Defendant did indicate at one point that he would be willing to
“tell all my legal basis to the next judge”—the same “next judge” who would postpone the
trial, or so defendant assumed—but otherwise defendant never indicated any willingness to
cooperate with the court or show any respect for the judge’s authority.
¶ 87 That last point bears emphasis. Defendant’s conduct toward the judge was deplorable, far
beyond the routine lack of polished professionalism that a judge must be prepared to tolerate
from a pro se defendant. Sometimes defendant challenged the judge’s authority point blank,
as in, “You think you’re even going to rule over my shit you got to be crazy.” Sometimes he
just mouthed off indiscriminately, at the judge and the prosecutor alike, telling one or the other
of them to “fuck on,” or “get the fuck out of here,” or “knock it off.” He complained endlessly
about the judge’s “bullshit.” And it would be one thing if he merely interrupted the judge, but
he did not stop there. When the judge calmly responded to an interruption by assuring
defendant, “You’ll have your chance” to ask questions, defendant met the judge’s temperate
response with an impertinent and disrespectful demand: “I’m asking you a question right now.”
¶ 88 When the judge tried to warn defendant that his antics “won’t go over well before a jury,”
defendant, offering a glimpse of what a pro se trial might look like, retorted, “I don’t give no
fuck about none of that you’re talking about, man.” When the judge admonished him that he
was “disrespecting the court,” defendant fired back, “You disrespect the court every day.”
¶ 89 The same impudence was on full display in several longer exchanges between defendant
and the judge. Consider this vignette, in which defendant had just finished cursing about his
public defender being “in cahoots” with the prosecution:
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“THE COURT: Sir, watch your language and I also admonish you that language
will not go over well with the jury. It will not.
THE DEFENDANT: I got a freedom of speech. I can say what I want to say.
THE COURT: Well, you don’t have a freedom of speech in this courtroom to say
anything—
THE DEFENDANT: Shit, shit.
THE COURT: —outside the decorum of this courtroom.
THE DEFENDANT: Shit.
THE COURT: And if necessary—
THE DEFENDANT: That would be crazy. If y’all think y’all fittin’ to railroad me,
y’all crazy. Y’all crazy.
THE COURT: If you continue to act out—
THE DEFENDANT: I’m not continuing. You’re the one acting out.
THE COURT: —then you will—
THE DEFENDANT: You’re the one acting out.
THE COURT: You will be taken in the back and the trial will proceed in your
absence.
THE DEFENDANT: What the fuck you talking about acting out? You acting out.
Denied, denied, denied. Every time the State come up with something it’s granted.
THE COURT: So we will proceed in your absence. Make no mistake about it.
THE DEFENDANT: I ain’t make nothing mistake.
THE COURT: Okay.
THE DEFENDANT: What the fuck you talking about?”
¶ 90 Or take this exchange, in which defendant had just insisted on transferring his case to a
different judge, one who would grant his request to delay the trial date:
“THE COURT: That request is also denied.
THE DEFENDANT: I know it’s denied. So you’re not fittin’ to just rush me to trial
on your behalf, man, ’cause—
THE COURT: We’re going to proceed to trial.
THE DEFENDANT: Ain’t no proceeding, shit. You’re proceeding on your own.
THE COURT: Well, whether you’re here or not we’re proceeding.
THE DEFENDANT: We nothing. What you talking about we? I just told you the
way it is. I’m fittin’ to hire an attorney. What the fuck you talking about?
THE COURT: Attorney needs to be here ready, willing and able to proceed to trial.
THE DEFENDANT: Ain’t no ready. He’s going to go over these cases with me
like he’s supposed to. Talking about September 29th. I supposed to start a trial last year
September 29th.
THE COURT: That’s why you’re definitely starting now.
THE DEFENDANT: I ain’t definitely starting shit.
THE COURT: Please also remember, sir, if you’re found guilty—
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THE DEFENDANT: Ain’t no guilty. You’re going to find me guilty even if the
jury don’t find me guilty. You’re going to overrule and still find me guilty, man.
THE COURT: I can’t overrule a jury.
THE DEFENDANT: What are you talking about? Knock it off.
THE COURT: With respect to that if the jury finds you not guilty, then you would
be not guilty. If the jury finds you guilty, it would be this Court that’s doing the
sentencing.
THE DEFENDANT: I don’t give no fuck about no sentencing, man.”
¶ 91 Lastly, defendant openly mocked the seriousness of sexual assault, an offense of which he
was accused. As he put it in one outburst, while interrupting the prosecutor who was seeking
leave to amend the indictment: “20 years for some—you saying I put my fingers in something.
20 years? Knock it off, man. Get the fuck out of here.” That “something,” as the prosecutor’s
recitation of the charging language had just made clear, was of course the victim’s vagina.
¶ 92 We could continue, but we will leave it at that. To recap: Defendant refused to cooperate
even minimally with the court. He obstructed and stonewalled the proceedings, refusing to
answer the judge’s questions and going so far as to leave the courtroom, thus requiring the
judge to shackle him at the next hearing, a remedy that had little effect beyond keeping him in
the courtroom. His verbal assaults against the judge personally, as well as the authority of the
court, were relentless and sometimes deeply offensive. He showed no respect whatsoever for
the court or any of its officers. He openly disparaged the seriousness of sexual assault. And he
devolved into these antics not once, but at two separate hearings—and more to the point, every
time he was in charge of his own defense.
¶ 93 So when defendant demanded to represent himself yet again, the judge could rightfully
expect more of the same. Defendant would derail another motion hearing. Worse yet, he would
continue his defiant, disruptive, and deeply disrespectful antics at his trial, in front of a jury.
The judge, having warned defendant that his conduct was jeopardizing both his right to be
present at his trial and his right to conduct his own defense, was well within his rights to say
that enough was enough. Defendant’s misconduct was “serious and obstructionist” indeed, and
the trial court could rightfully deny his request for a third go at self-representation on this basis.
¶ 94 Thus, even if defendant’s third request for self-representation was unequivocal (it was not,
for the reasons above), we would affirm the court’s judgment for the additional reason that
defendant had given the court every reason to believe that his self-representation at trial would
significantly impugn the integrity of the proceedings. The trial court was not required to turn
its courtroom over to a defendant who threatened to turn it into a three-ring circus.
¶ 95 CONCLUSION
¶ 96 The trial court should be commended for its patience and its steadfast attempt to remain
focused and protective of defendant’s rights, notwithstanding seriously abusive conduct by
defendant. And while, as defendant notes, perhaps not every basis given by the trial court for
denying defendant’s third request for self-representation was supported by the law, we have
no hesitation in finding ample grounds to uphold the trial court’s judgment.
¶ 97 The judgment of the circuit court is affirmed in all respects.
¶ 98 Affirmed.
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