People v. Hardin

SECOND DIVISION
SEPTEMBER 15, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 95-31085
)
TRACY HARDIN, ) THE HONORABLE
) OLIVER M. SPURLOCK,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:

Defendant Tracy Hardin was charged by indictment with
delivery of a controlled substance. Following a bench trial, he
was found guilty as charged and sentenced to a term of six years'
imprisonment in the Illinois Department of Corrections.
Defendant now appeals, contending that: (1) he was denied his
constitutional right to the assistance of counsel of his choice;
(2) his waiver of jury was involuntary; and (3) the evidence was
insufficient to prove him guilty beyond a reasonable doubt.
BACKGROUND
This case had been set for a bench trial for June 26, 1996.
No trial proceedings were had on that date. Rather, the report
of proceedings reflects that the following discussion occurred on
that date:
"THE CLERK: Tracy Hardin.
MR. KUSATZKY: For the record Mark Kusatzky on
behalf of Tracy Hardin before the Court.
This matter was set for a bench trial today;
however, Mr. Hardin has retained other counsel with
regards to this matter who, I believe, will be seeking
leave to file his Appearance in regards to this matter,
and I believe that their position will not be one of a
bench trial, Your Honor.
THE COURT: This matter has been on this call
since November, 1995. You have been the attorney of
record since then?
MR. KUSATZKY: That is correct, Your Honor.
MR. ABUDALLAUH: Aski Abudallauh.
THE COURT: You can co-counsel this case with Mr.
Kusatzky. Is the state ready?
MS. ROMITO [Assistant State's Attorney]: Actually
the buy officer called to tell me he broke a crown last
night and had emergency dental work done. His face is
swollen.
I could force him to come in. They let him go
home. He said he would come back tomorrow. He is on
pain killers, but if we want a jury trial, the [S]tate
can be ready tomorrow.
THE COURT: Is that what you are asking for?
MR. ABUDALLAUH: We would be asking for a jury
trial, but while the case is not complicated --
THE COURT: You don't have to explain why. You
want a jury?
MR. ABUDALLAUH: Yes.
THE COURT: Tomorrow morning. Be in the chief
judge['s] office tomorrow morning. Go to the chief
judge. We will bring down a venire, and we will select
a jury tomorrow afternoon and begin evidence Friday
morning, understood?
MR. ABUDALLAUH: That is understood, but I have
outstanding discovery that I don't have custody of and
counsel doesn't have.
THE COURT: What is left?
MR. ABUDALLAUH: There is an activity report.
THE COURT: State, do yo have anything else?
MS. ROMITO: Judge --
MR. ABUDALLAUH: I have only just reviewed the
file with counsel.
MR. KUSATZKY: For the record I have not been
tendered any activity report.
THE COURT: What is the activity report?
MR. ABUDALLAUH: The activity report is basically
the activity that was conducted by the officers on the
date of the buy.
THE COURT: Do you have an activity report?
MS. ROMITO: Judge, per my records we tendered all
discovery on November 29th. There has [sic] not been
additional requests for discovery. I can certainly
look for an activity report; however, everything in my
file counsel has in his file.
THE COURT: -- all right, chief judge tomorrow
morning, 6/27/96.
MR. KUSATZKY: Your Honor --
THE COURT: 10:00.
MR. KUSATZKY: I would request leave to withdraw
in regards to this matter, the reason being, Number 2,
Your Honor, I was not prepared to go to a jury trial in
regards to this matter tomorrow in regards to
scheduling. I understand if the Court so orders with
regards to this matter, I will be here, but I am just
making a request of this Court. Mr. Abudallauh is
filing his Appearance today. He is capable and willing
to do the jury trial tomorrow, Your Honor.
THE COURT: But he is going to have to do that
with you; not at this juncture. We have a date set for
trial. I will allow the defendant to bring in a second
lawyer.
MR. ABUDALLAUH: Will you pass this and let me
speak with counsel and defendant and maybe we can
resolve this.
MR. KUSATZKY: That is fine.
THE CLERK: Tracy Hardin.
MR. KUSATZKY: Mark Kusatzky.
The other attorney will not be filing an
Appearance, and considering that the buy officer has a
problem tonight, Your Honor, and considering that he is
raising the specter of some other reports, I would be
requesting a continuance of about two weeks for a bench
trial, Your Honor.
MR. KUSATZKY: July 10th.
THE COURT: Tracy Hardin, is that date all right
with you, Officer, July 10th?
OFFICER: Yes.
MR. KUSATZKY: July 10th. Thank you.
THE COURT: July 10th."
On July 10, 1996, the trial court presided over a bench
trial in this matter. The State presented the testimony of
Chicago police officers Clarence Junkins and Robert Finn.
Officer Junkins testified that, on October 5, 1995, he was
working undercover in order to make controlled purchases of
narcotics in the area of 3800 West Van Buren, Chicago, Illinois.
At approximately 8:40 a.m., he was driving a covert vehicle on
the 3800 block of West Van Buren and observed defendant standing
on the sidewalk at 3818 West Van Buren. Officer Junkins parked
his vehicle and approached defendant. As he got closer to
defendant, defendant asked him, "How many?" Officer Junkins
responded, "One dime bag of blow."
Defendant handed Officer Junkins a tinfoil packet of powder
heroin. Officer Junkins gave defendant a $10 bill bearing a
prerecorded serial number. He then returned to his covert
vehicle and drove away.
Junkins notified members of his enforcement team via his
radio that he had made a successful purchase of narcotics. He
also radioed a general address where defendant could be found and
a description of defendant's clothing and appearance.
Officer Junkins testified that, approximately five minutes
after he had purchased the heroin from defendant, he returned to
the scene to ensure that the enforcement team had apprehended the
proper person. Back at the scene, he noticed that the
enforcement team had two people in custody: defendant and Lawson
Green. Officer Junkins was able to distinguish defendant from
Green because Green was taller, heavier, and had facial hair.
Officer Finn stated that he was working as a member of the
enforcement team on the date before defendant was arrested. Finn
testified that, at approximately 8:40 a.m., he received a radio
message from Officer Junkins. Junkins radioed that he had just
made a purchase of narcotics and described defendant's location,
clothing, and physical appearance.
Officer Finn stated that, when he arrived at 3818 West Van
Buren, he saw defendant standing with four other individuals. He
stated that he approached defendant because he matched the
description that Junkins had given. After defendant was taken
into custody, a pat-down search of Lawson Green was performed and
he was found to be in possession of the prerecorded money.
Defendant was placed under arrest after Officer Junkins
positively identified him.
The State then rested. Defendant rested without presenting
any evidence. After hearing closing arguments, the trial court
found defendant guilty as charged and sentenced him to six years
in the Illinois Department of Corrections.
Defendant appeals. For the following reasons, we reverse
and remand.
ANALYSIS
Defendant contends that the trial court's denial of his
request to substitute counsel violated his constitutional right
to be represented by the counsel of his choice. In
contradistinction to defendant's contention, the State contends
that defendant was not denied his right to counsel of his choice
where the trial court gave leave to his second attorney to file
his appearance. We agree with defendant's contention on this
issue.
A principal case relied upon by defendant is People v.
Green, 42 Ill. 2d 555 (1969). In Green, our supreme court held
that the defendant was denied his constitutional right to counsel
of his choice where he was represented at trial by the public
defender appointed that same morning after the trial court had
denied his request for a continuance to enable his private
counsel, who had actually been retained by a church, to return to
town and "come through." Green, 42 Ill. 2d at 556. Other cases
relied upon by defendant include: People v. Childress, 276 Ill.
App. 3d 402, 657 N.E.2d 1180 (1995); People v. Young, 207 Ill.
App. 3d 130, 565 N.E.2d 309 (1990); People v. Washington, 195
Ill. App. 3d 520, 552 N.E.2d 1067 (1990); and People v. Koss, 52
Ill. App. 3d 605, 367 N.E.2d 1040 (1977). Our examination of
Childress, Young, Washington, and Koss indicates that these cases
are relevant and instructive.
In Koss, the reviewing court held that a trial court's
denial of a defendant's motion for a continuance to obtain new
counsel is not an abuse of discretion where new counsel is not
specifically identified or does not stand ready, willing, and
able to make an unconditional entry of appearance. Koss, 52 Ill.
App. 3d at 607-08, 367 N.E.2d at 1041. Thus, Koss enunciated
some crucial factors for consideration in determining whether a
court commits an abuse of discretion by denying an accused a
continuance to obtain new counsel. These factors are: (1)
whether new counsel has been specifically identified and (2)
whether new counsel stands ready, willing, and able to make an
unconditional entry of appearance. Koss, 52 Ill. App. 3d at 607-
08, 367 N.E.2d at 1041.
In Childress, the reviewing court held that the defendant
was denied his constitutional right to counsel of his choice
where the defendant claimed that he did not know the case had
been scheduled for trial. Also, on the trial date, an attorney
who had been retained by the defendant's family was present and
willing to file an appearance but was not aware that the trial
was scheduled for that day; therefore, the attorney was
unprepared to begin trial. The trial court denied his request
for a continuance. Childress, 276 Ill. App. 3d at 410, 657 N.E.2d
at 1186. The Childress court noted that "[a] court does not
abuse its discretion where new counsel is unidentified or does
not stand ready, willing, and able to make an unconditional entry
of appearance on defendant's behalf." Childress, 276 Ill. App. 3d
at 411, 657 N.E.2d at 1186, citing People v. Jones, 269 Ill. App.
3d 925, 932, 647 N.E.2d 612, 617 (1995). However, the appellate
court in Childress noted that the trial court in that case found
that the defendant's request was not a delay tactic and that
counsel had been present in court, ready to represent the
defendant, and retained and paid a fee. Childress, 276 Ill. App.
3d at 411-12, 657 N.E.2d at 1187.
We also note that, in Childress, the reviewing court wrote:
"[W]e find defendant's right to counsel outweighed
the State's interest. At issue is not merely a trial
court's discretion in whether to grant a continuance.
At stake is defendant's constitutional right to be
represented by counsel of choice. The right is
absolute and limited only where abuse exists[,] such as
attempts to thwart justice, delay, or embarrass the
effective administration of justice, or where a
conflict of interest is clear from the record. Also,
because the issue is right to counsel of choice, we
reject the State's contention that a showing of
prejudice is necessary." Childress, 276 Ill. App. 3d at
413, 657 N.E.2d at 1188.
Thus, other factors that a court may consider in determining
whether a motion should be granted when a defendant requests a
continuance to obtain counsel are whether the defendant is
attempting to thwart justice, delay, or embarrass the effective
administration of justice, or is engaged in a clear conflict of
interest. Childress, 276 Ill. App. 3d at 413, 657 N.E.2d at 1188.
We note that neither the State nor the trial court in the instant
case asserts that defendant was seeking to thwart justice or was
engaged in delaying tactics. Likewise, the record before us
reveals no conflict of interest.
In Washington, 195 Ill. App. 3d 520, 552 N.E.2d 1067, the
transcript of the report of proceedings established that the
following pertinent discussion occurred in court after the clerk
called the case:
"'MR. ROZENSTRAUCH [the Public Defender]: Present
before your Honor is Mr. William Washington. The
matter was set for trial today. Mr. Washington informs
me he, his family has retained an attorney for him who
asked that the case be set for April 9th. I am ready
to proceed.
MR. LEVY: State's ready to proceed today, too,
Judge.
THE COURT: Motion for continuance denied.
MR. ROZENSTRAUCH: We are ready.
THE COURT: No one has filed an appearance. This
is just some statement that somebody wants something
continued. The family--.
MR. ROZENSTRAUCH: They have given me the name of
the attorney.
THE COURT: Well, that is all very well. He is
competently represented at this time. Motion for
continuance denied. State ready?
MR. LEVY: We are ready to proceed today, Judge.
THE COURT: Pass it for trial.'" Washington, 195
Ill. App. 3d at 522, 552 N.E.2d at 1068.
In Washington, the court wrote: "We believe that People v.
Green, [42 Ill. 2d 555 (1969)], People v. Willis, [6 Ill. App. 3d
980, 286 N.E.2d 72 (1972)], and People v. Ritchie, [66 Ill. App.
2d 417, 213 N.E.2d 306 (1966)], are instructive***." Washington,
195 Ill. App. 3d at 526, 552 N.E.2d at 1071. We have already
addressed Green. We have also read Willis and Ritchie and also
consider those cases relevant and instructive regarding our
analysis in this case.
In Willis, the court held that the defendant was denied his
constitutional right to counsel and wrote:
"The testimony of the defendant, the affidavit and
testimony of Sanders, is uncontradicted and is to the
effect that the defendant desired Sanders' services as
an attorney, did all that he could do considering his
incarceration to contact Sanders as soon as practicable
after Sanders returned from his vacation, and that
Sanders would have undertaken to represent the
defendant and that the defendant called him a day or so
after he returned from his vacation. Sanders, in fact,
had previously undertaken to obtain information as to
this proceeding upon hearing of the same by news media
and called the county jail to make certain inquiry."
Willis, 6 Ill. App. 3d at 982, 286 N.E.2d at 73-74.
In Ritchie, the reviewing court held that, on the date the
matter was set for trial, the circuit court improperly denied the
defendant's request for a continuance, which was intended to
enable counsel other than the public defender to be obtained.
Ritchie, 66 Ill. App. 2d at 422, 213 N.E.2d at 308. The facts
showed that the defendant had been in custody for four months,
the public defender had stated that an attorney by the name of
Berkus had contacted him and indicated that he might enter his
appearance in the case, and the defendant had informed the court
that his family had hired a lawyer. Even so, the court ordered
the trial to proceed and allowed the defendant to conduct his
case himself. The court ordered the public defender to sit in
the courtroom and to be available to represent the defendant if
the defendant chose to make use of the public defender's
services. Ritchie, 66 Ill. App. 2d at 419-20, 213 N.E.2d at 306-
07.
Relative to the case of People v. Young, 207 Ill. App. 3d
130, 565 N.E.2d 309 (1990), cited by defendant in the case sub
judice, the defendant and codefendant in Young were both arrested
and charged with offenses that were perpetrated on July 24, 1989.
Separate counsel were appointed for them. After denying a motion
for severance, the court set October 30, 1989, as the trial date
for both defendants. On the morning of the trial date, the
defendant's attorney informed the court that the defendant wished
to replace him with an attorney of his own choice and advised the
court that the defendant had received bail money in excess of
$1,500 four days earlier and intended to use it to hire his
lawyer. However, the trial court summarily denied the motion for
a continuance to seek other counsel. After the luncheon recess,
attorney John McFetridge appeared in open court and stated that
the defendant had contacted him for the purpose of
representation. In support of McFetridge's entry of appearance
for the defendant, the public defender representing the defendant
argued that the defendant had only recently become financially
able to retain private counsel, who was now "available and
willing" to enter his appearance, and that the only previous
continuance in the case had been primarily for the benefit of the
codefendant. Young, 207 Ill. App. 3d at 132-33, 565 N.E.2d at
310-11. The trial court in Young denied the motion, stating,
inter alia:
"'There are a hundred Jurors out there. There's a co-
Defendant that wishes to have a trial, and based on all
those I don't believe it would be appropriate to allow
an entry of appearance or substitution of Counsel.
Bring 30 people in, and we'll start picking a Jury.'"
Young, 207 Ill. App. 3d at 133, 565 N.E.2d at 311.
In Young, the reviewing court wrote:
"From the record before this court, attorney
McFetridge apparently stood willing and able to make an
entry; the only reason we do not know if he was ready
to do so unconditionally is because the court never
asked. Thus, McFetridge never discussed how prepared
he was for trial, if he would need a continuance, and
how lengthy that might have to be." (Emphasis in
original.) Young, 207 Ill. App. 3d at 134, 565 N.E.2d
at 312.
Finally, after its analysis, the reviewing court in Young held
that the trial court's decision to deny the defendant counsel of
his choice was an abuse of discretion. Young, 207 Ill. App. 3d at
135, 565 N.E.2d at 312.
While, on the one hand, the trial court in the case sub
judice did not refuse to allow attorney Abudallauh to appear, the
trial court did, on the other hand, refuse to allow attorney
Kusatzky to withdraw. Attorney Abudallauh indicated that he
wanted a jury trial. He also informed the court that the
activity report had not been provided through discovery. After
attorney Kusatzky requested leave to withdraw, he advised the
court: "Mr. Abudallauh is filing his appearance today. He is
capable and willing to do the jury trial tomorrow." The
following discussion then occurred between the court and the
attorneys:
"THE COURT: But he is going to have to do that
with you; not at this juncture. We have a date set for
trial. I will allow the defendant to bring in a second
lawyer.
MR. ABUDALLAUH: Will you pass this and let me
speak with counsel and defendant and maybe we can
resolve this.
* * *
MR. KUSATZKY: Mark Kusatzky the other attorney
will not be filing an appearance, and considering that
the buy officer has a problem tonight, your honor, and
considering that he is raising the specter of some
reports, I would be requesting a continuance of about
two weeks for a bench trial."
The State contends that the record is clear that the trial
court never denied defendant's request that Abudallauh be allowed
to represent him. Thus, the State argues, the trial court never
denied defendant's right to be represented by counsel of his
choice, and there is no abuse of discretion to review. We do not
agree with the State's contention that this record shows that the
trial court never denied defendant's right to be represented by
counsel of his choice.
The State further argues that defendant did not request a
continuance to obtain counsel of his choice; rather, defendant
had two attorneys in court on June 26, 1996. The State contends,
therefore, that the trial court was not required to balance
defendant's due diligence in obtaining counsel with his
constitutional right to counsel of his choice. We agree that
defendant did not request a continuance to obtain counsel.
However, in our view, although defendant did not request a
continuance to obtain counsel, the reasons for granting his
request to substitute counsel are more compelling rather than
less compelling.
In our view, although the trial court did not refuse to
allow attorney Abudallauh to file his appearance as an additional
attorney for defendant, the trial court's refusal to allow
attorney Kusatzky to withdraw denied defendant his right to be
represented by counsel of his choice. Defendant requested to be
represented by one attorney, not two. The right of the defendant
to have an attorney of his choice is an unfettered and
unconditional right. See Young, 207 Ill. App. 3d at 133, 565 N.E.2d at 311. There is a proverbial saying that "Too many hands
may spoil the broth." Potential problems are obvious and
manifold. It is obvious that, where the court dictates that a
defendant will have two rather than one counsel, the court may be
inviting potential problems involving the trial strategy to be
adopted in the case. Attorney Abudallauh had indicated that he
intended to proceed to trial by jury, whereas Mr. Kusatzky
intended to and did have defendant waive the jury trial and
proceed with a bench trial. Also, defendant should not be
burdened in the instant case with the potential responsibility
for paying fees to two attorneys.
Based on the record in the case at bar, it appears that
attorney Abudallauh stood ready, willing, and able to make an
unconditional entry. It further appears that the reason that
attorney Abudallauh did not file his appearance after the
discussion with the court was due to the trial court's denial of
attorney Kusatzky's request to withdraw. We hold that the
court's qualification of defendant's right to counsel was a
denial of the unconditional right to counsel. Therefore,
defendant's first contention must be sustained.
Based on our examination of the record, the evidence
presented at trial was sufficient to prove defendant's guilt
beyond a reasonable doubt. However, because we remand, we do not
address defendant's other issues.
Reversed and remanded.
RAKOWSKI and TULLY, JJ., concur.