{ "id": 2571591, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Hubbard, Junior, Defendant-Appellant", "name_abbreviation": "People v. Hubbard", "decision_date": "1966-10-28", "docket_number": "Gen. No. 50,316", "first_page": "14", "last_page": "24", "citations": [ { "type": "official", "cite": "77 Ill. App. 2d 14" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "219 NE2d 639", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill App2d 302", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2583493 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/73/0302-01" ] }, { "cite": "211 NE2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill2d 349", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2885820 ], "pin_cites": [ { "page": "353-355" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0349-01" ] }, { "cite": "177 NE2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789215 ], "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0518-01" ] }, { "cite": "213 NE2d 514", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill2d 603", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884374 ], "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0603-01" ] }, { "cite": "103 NE2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "411 Ill 118", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312417 ], "opinion_index": 0, "case_paths": [ "/ill/411/0118-01" ] }, { "cite": "233 F Supp 633", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1481944 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f-supp/233/0633-01" ] }, { "cite": "330 F2d 278", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 127762 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/330/0278-01" ] }, { "cite": "304 US 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10805 ], "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/us/304/0458-01" ] }, { "cite": "372 US 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "182 NE2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352878 ], "pin_cites": [ { "page": "35, 36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0032-01" ] }, { "cite": "214 NE2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878327 ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0179-01" ] }, { "cite": "208 NE2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill App2d 298", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2602321 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/59/0298-01" ] }, { "cite": "212 NE2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2882681 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0527-01" ] } ], "analysis": { "cardinality": 790, "char_count": 16234, "ocr_confidence": 0.62, "pagerank": { "raw": 2.2774397756934865e-07, "percentile": 0.7844306753019191 }, "sha256": "84f74bfff2f48418d4b412156571d59ce8b2d1c909e07f7a228767538baaa52d", "simhash": "1:ab32f3ac7e6f8cb2", "word_count": 2757 }, "last_updated": "2023-07-14T20:37:32.347004+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Hubbard, Junior, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nOffenses Charged in the Indictments\nRape and robbery.\nJudgment\nThe causes were consolidated for trial, and after a jury verdict finding defendant guilty of both offenses, the court imposed concurrent sentences of 25 to 50 years for rape and 5 to 10 years for robbery.\nPoints Raised on Appeal\n(1) The indictments insufficiently alleged the time and place of the crimes charged.\n(2) Certain stricken testimony was so prejudicial as to require a new trial.\n(3) Defendant was deprived of his right to counsel at the trial.\nOpinion\n(1) Defendant\u2019s contentions as to the insufficiency of the indictments are based on the fact that the place of the crimes is designated only as being within the County of Cook, and the time of the crimes as being on \u201cJanuary 39th [sic], 1964.\u201d These arguments, made in reliance upon section 111-3 of the Code of Criminal Procedure (Ill Rev Stats (1963), c 38, \u00a7 111-3), are no longer available to defendant, having been disposed of contrary to his position by the decisions in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97; and People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed, 34 Ill2d 179, 214 NE2d 765.\n(2) By not contending here that the evidence failed to establish his guilt beyond a reasonable doubt, defendant has conceded that there is ample proof of his guilt to be found in the record, as indeed there is. Defendant does contend, however, that he was prejudiced by the testimony of one of the State\u2019s witnesses, Police Officer Booker T. Porter, who testified on direct examination to conversations he had engaged in with defendant at the police station shortly after his arrest. Part of his testimony follows:\nSTATE\u2019S ATTORNEY: Q. What did the defendant say to you at that time and what did you say to him?\nA. I asked Mr. Hubbard what was the circumstances of his arrest, and he told me that he had gotten into some trouble at a house on Peoria Street with some woman in the house and that he had had relationships with two of the women in the house.\nTHE COURT: The jury is instructed to disregard the last statement of the witness. That is stricken from the record.\nTHE WITNESS: Relative to . . .\nSTATE\u2019S ATTORNEY: (Interposing) Q. Officer, did you have a conversation with him about being on 72nd and Peoria ?\nA. Yes, sir.\nOfficer Porter then testified further concerning the events covered by the instant indictments which originated at 72nd and Peoria Streets. The other matter referred to in the above excerpt of his testimony took place near that location and involved two other rapes for which he was subsequently convicted.\nDefendant contends that the reference by the witness to facts immaterial to the offenses being tried was so highly prejudicial as to be sufficient, in itself, to deny defendant\u2019s right to a fair trial. We find nothing in this testimony to have been prejudicial to that extent. We think, rather, that the reasoning in People v. Naujokas, 25 Ill2d 32, 35, 36, 182 NE2d 700, is applicable to the situation here. In Naujokas, the arresting officer was asked on direct examination \u201cwhat he did with relation to the defendant after the line-up ?\u201d The response included reference to a conversation between the witness and the accused concerning facts pertinent to another offense. The court observed:\nIt is apparent that the quoted testimony . . . was incompetent and irrelevant. However, . . . the answer was not responsive and was not adduced by the question by the State\u2019s Attorney .... In addition the prompt action of the court in interrupting the testimony, striking the answer, and admonishing the jury served to cure any possible error. In view of the fact of the court\u2019s prompt action and the fact \u2022 that the testimony was not adduced by action of the State, we feel that the court was not in error in denying the motions for a mistrial. (Citing cases.)\nThe record in the instant case indicates that Officer Porter had two different conversations with defendant, and it was the second of these conversations which related to the instant offenses, the first conversation having been the one referred to in the questioned testimony. Defendant\u2019s brief suggests that \u201cOfficer Porter was confusing the facts involved in another indictment with the indictments being tried in this case,\u201d and we are inclined to agree with this analysis. There is nothing to indicate that the State\u2019s Attorney consciously intended to elicit incompetent or prejudicial testimony from the witness. On the contrary, the record demonstrates not only prompt admonishment by the court to the jury to disregard such testimony, but also immediate action by the State\u2019s Attorney to propound a more specific question designed to remove the confusion from the mind of the witness. It might also be noted that the testimony in question did not expressly refer to other criminal offenses, but, without further proof, could be said to describe only immoral behavior on the part of defendant.\nIn the light of the foregoing we do not find anything in this point which requires reversal.\n(3) Before considering defendant\u2019s contention that he was deprived of his right to counsel, we must review some of the trial events which preceded presentation of the State\u2019s case. Prior to the calling of prospective jurors, defendant advised the court that he did not wish to be defended by his attorney of record, Marshall Schwarzbach, who had been appointed by the court. The judge reminded defendant that he had previously objected to being represented by Thomas Kelly, a public defender, and that the result of rejecting Mr. Schwarzbach as counsel would be that he would once again be represented by Mr. Kelly. Defendant protested that he had a basic disagreement with both counsel as to the way in which his case should be handled, and further announced that he objected to going to trial because \u201cI haven\u2019t got competent counsel.\u201d The judge then stated for the record that he was aware of Mr. Schwarzbach\u2019s qualifications and experience in the trial of previous cases before the court and considered him to be competent. At this point, Mr. Schwarzbach requested leave of the court to withdraw as counsel for defendant. This request, however, was denied.\nThe prospective jurors were then called, but their questioning had scarcely begun when the trial judge, Mr. Schwarzbach, Mr. Kelly and the defendant withdrew to chambers. Again being informed by defendant that he wished neither Mr. Schwarzbach nor Mr. Kelly to represent him, the trial judge advised the defendant of his rights as follows:\nNow, I want to advise you what I think is in your own best interests, that you are under the law entitled to be represented by counsel who is competent and able to present your defense.\nNow, I advise you that in my opinion Mr. Schwarzbach is able to do that. However, under our system, you have the right, if you want to discharge Mr. Schwarzbach, to do so with the understanding, however, that I would then appoint Mr. Kelly, the Public Defender, that if you don\u2019t want him, I will discharge him because you have the right to discharge these lawyers if you don\u2019t want them to represent you, but you will then be compelled to defend yourself, which I think you are undoubtedly not able to do.\nAt the same time, you have the right to discharge these lawyers if you want to do so because you are the one on trial and if you want to fire them, you have the right to fire them.\nThe following colloquy then took place between defendant and the trial judge:\nThe Defendant: I strictly don\u2019t want either one of them.\nThe Court: Do you want Mr. Kelly to sit in the courtroom and advise you during the course of the trial?\nThe Defendant: Judge, Your Honor, personally, I don\u2019t really have any choice about any of it so it doesn\u2019t matter whether he sits with me or not because I am not going to do anything but sit there, because if I have no lawyer, how am I going to court ?\nThe Court: Well, you can suit yourself.\nThe Defendant: Yes, sir.\nThe Court: Mr. Kelly, I would ask that you sit there and advise the defendant. If he chooses to accept your advice or reject it, it is up to him. Mr. Schwarzbach, you will be permitted to withdraw.\nProceedings in the courtroom were then resumed and the jury was impaneled and sworn. The court asked defendant if he wished to make any opening statement. Defendant reiterated: \u201cI object to going to trial today because I haven\u2019t got competent counsel to represent me.\u201d The court then observed for the record that defendant did not wish to make an opening statement, and directed the prosecution to call its first witness.\nDespite defendant\u2019s argument to the contrary, we are not confronted here with the obligation of the State to appoint counsel for an indigent under the mandate of Gideon v. Wainwright, 372 US 335. Nor is there any question that the trial court properly informed defendant of his right to be represented by counsel. In fact, defendant concedes that he was given an understandable instruction that he had the right to choose either Mr. Kelly or Mr. Schwarzbach to defend him in court, and that he also had the right to proceed as his own attorney. The gist of defendant\u2019s claim of error is that the court failed to set before him starkly the consequences of refusing both alternatives. Defendant, relying on Johnson v. Zerbst, 304 US 458, 464, points out that because of this failure by the court, he never intelligently and understandingly made a clear-cut statement that he elected to waive counsel and defend himself. It is suggested by defendant that the following statement by the court would have avoided the alleged error in the record and squarely put defendant to a specific election: \u201cMr. Hubbard, do you wish to represent yourself or do you wish to be represented by Mr. Schwarzbach or Mr. Kelly?\u201d\nIn support of his contention, defendant refers us to United States v. Curtiss, 330 F2d 278 (2nd Cir 1964). The record showed Curtiss\u2019 disinclination to be represented by court-appointed counsel, but failed to show a desire on the part of Curtiss to represent himself. The court stated:\nCurtiss\u2019 statements indicate that while he was unhappy about his relationship with Mr. Kaplan, he certainly had no wish to try the case himself but felt that \u201che had no choice.\u201d Of course the judge need not have appointed other counsel besides Mr. Kaplan unless Curtiss showed good cause, . . . but it was erroneous to require him to try his own case without a clear-cut statement that he intelligently wished to do so.\nDefendant argues that the statements of the Curtiss court must be construed to mean that there is a failure to protect his constitutional rights if defendant is permitted to proceed pro se without having knowingly expressed his desire to represent himself. If this is the correct interpretation of the Curtiss decision (there were other grounds for reversal), then we must reject it, despite the persuasiveness of opinions customarily originating in that court.\nDefendant says that there were, under the Curtiss case, only two alternatives available to defendant in this case: (1) acceptance of one or the other of the court-appointed counsel (thus conceding that the trial court was not required to appoint a third attorney), or (2) an affirmative decision to waive counsel and to defend himself. In advocating these as the only alternatives, defendant also expressly concedes that a defendant may not use his right to counsel as a device to delay trial (United States ex rel. Allen v. Rundle, 233 F Supp 633 (ED Pa, 1964)), and he may waive his right to act for himself (People v. Ephraim, 411 Ill 118, 103 NE2d 363).\nDefendant then says that the two alternatives were not effectively presented to him, with the result that he never intelligently decided to waive counsel and defend himself. We cannot agree with this conclusion. We believe it fails to consider a third alternative which precisely fits the facts of this case, namely, that if a defendant knowingly rejects properly appointed counsel, he will then be required to defend himself despite protestations that he does not wish to do so. That the trial court in the instant case made this third proposition clear to defendant we have no doubt. That being true, defendant was then obliged to proceed pro se if the trial were not to be indefinitely suspended, a result which could not be countenanced; his right to counsel \u201cmay not be employed as a weapon to thwart the administration of justice.\u201d People v. Mitchell, 33 Ill2d 603, 605, 213 NE2d 514.\nIn our opinion the record clearly indicates a conscious, intelligent choice on the part of defendant to proceed with his own defense. When the court told him that if he persisted in his rejection of representation by both Mr. Schwarzbach and Mr. Kelly he would be \u201ccompelled\u201d to defend himself, the compulsion referred to was not one imposed upon defendant by the court, but rather was it the inevitable consequence of defendant\u2019s will not to accept the competent legal services which had been made available to him.\nAdditional light is shed on defendant\u2019s intentions by another colloquy with the court:\nThe Court: Well, you get, you are entitled to be represented by a lawyer who is competent and able to defend you.\nNow, that doesn\u2019t mean we go through lawyers until you get one that you personally like. You are entitled to a lawyer qualified to handle your case for you. You have had two of them. I am telling you, you can have your choice, either one of the two you want but I can\u2019t keep appointing lawyers until I find one that satisfies you.\nThe Defendant: It is not that so much, just that these lawyers don\u2019t \u2014 I don\u2019t know whether they are competent or not. It doesn\u2019t seem to me they are competent the way they present themselves to me.\nThe trial judge then expressly stated that in his opinion Mr. Schwarzbach was competent to represent defendant. We join in that opinion. As a matter of fact, defendant\u2019s brief makes it clear that the competence of Schwarzbach and Kelly is not in issue on this appeal. Defendant\u2019s statements as to their incompetency are presented here merely as a part of his expression of desire for counsel.\nPertinently, it was held in People v. Musinski, 22 Ill2d 518, 520, 177 NE2d 142, that:\nNeither the constitution nor statutes give the defendant the legal right to demand the court appoint new counsel whenever defendant conceives some disagreement with counsel\u2019s \u201ctactics.\u201d\nFor a further, rather full, discussion of this phase of defendant\u2019s contention see People v. Gray, 33 Ill2d 349, 353-355, 211 NE2d 369, and the cases therein cited.\nIn conclusion, we believe that the trial court made a more-than-adequate explanation to defendant of his right to counsel as it existed before the start of this trial. The results which followed defendant\u2019s decision in that regard were clearly foreseeable, but if not foreseen by him, became immediately apparent when the trial began. We find no error or basis for reversal.\nDecision\nThe judgment of the Circuit Court is affirmed.\nAffirmed.\nDRUCKER, P. J. and McCORMICK, J., concur.\nFor those crimes he was sentenced to 40 to 60 years for each offense, to run concurrently with each other and with the sentences here being reviewed. The other sentences were affirmed in People v. Hubbard, 73 Ill App2d 302, 219 NE2d 639.\nThe decision was not unanimous, Judge Medina dissenting. The majority seemed not to be strongly convinced of its conclusion on the waiver point. It said at pages 280, 281:\nEven if some doubt exists on the question whether defendant effectively waived his right to counsel, the judgment must be reversed because of improper statements made during the government\u2019s summation, which take on special significance where, as here, the defendant has acted as his own attorney. (Emphasis supplied.)", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Vernon T. Squires, of Chicago, for appellant.", "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Hubbard, Junior, Defendant-Appellant.\nGen. No. 50,316.\nFirst District, Fourth Division.\nOctober 28, 1966.\nVernon T. Squires, of Chicago, for appellant.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0014-01", "first_page_order": 20, "last_page_order": 30 }