{ "id": 3591271, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE DAVIS, Defendant-Appellant", "name_abbreviation": "People v. Davis", "decision_date": "1983-05-10", "docket_number": "No. 81\u20142444", "first_page": "537", "last_page": "545", "citations": [ { "type": "official", "cite": "114 Ill. App. 3d 537" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "404 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5554431 ], "pin_cites": [ { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0914-01" ] }, { "cite": "241 N.E.2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 Ill. 2d 16", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2852288 ], "year": 1979, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0016-01" ] }, { "cite": "384 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 186", "category": "reporters:state", "reporter": "Ill. 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App. 3d 566", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3276556 ], "pin_cites": [ { "page": "570-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0566-01" ] }, { "cite": "387 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2989804 ], "weight": 4, "pin_cites": [ { "page": "185" }, { "page": "185" }, { "page": "185-86" }, { "page": "183-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0180-01" ] }, { "cite": "259 A.2d 822", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "8 Md. App. 330", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2337852 ], "pin_cites": [ { "page": "336-37" } ], "opinion_index": 0, "case_paths": [ "/md-app/8/0330-01" ] }, { "cite": "387 A.2d 1101", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8076812 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/a2d/387/1101-01" ] }, { "cite": "526 P.2d 18", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10463545 ], "year": 1978, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/p2d/526/0018-01" ] }, { "cite": "68 Cal. Rptr. 1", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1974, "pin_cites": [ { "page": "10" }, { "page": "10" } ], "opinion_index": 0 }, { "cite": "440 P.2d 65", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "68 Cal. 2d 547", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2306159 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "561-62" }, { "page": "561-62" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/68/0547-01" ] }, { "cite": "248 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "42 Ill. 2d 555", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2846753 ], "weight": 2, "pin_cites": [ { "page": "557" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0555-01" ] }, { "cite": "411 N.E.2d 1123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5537436 ], "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0344-01" ] }, { "cite": "317 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "58 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953301 ], "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0202-01" ] }, { "cite": "223 N.E.2d 437", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 2d 299", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2569983 ], "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0299-01" ] }, { "cite": "374 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 460", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5624270 ], "year": 1966, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0460-01" ] }, { "cite": "173 N.E.2d 469", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732540 ], "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0451-01" ] }, { "cite": "186 N.E.2d 319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "26 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5354627 ], "year": 1961, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0392-01" ] }, { "cite": "303 N.E.2d 398", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2938325 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0443-01" ] }, { "cite": "324 N.E.2d 46", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2704075 ], "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0819-01" ] }, { "cite": "418 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3126525 ], "year": 1975, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0241-01" ] } ], "analysis": { "cardinality": 929, "char_count": 20646, "ocr_confidence": 0.742, "pagerank": { "raw": 1.4695856540121475e-07, "percentile": 0.6589069478568056 }, "sha256": "eb370a22fbed82f3622ba88e8fe396e08522b60f63c2178df7547d2324f453c2", "simhash": "1:8f04df9c67353e98", "word_count": 3392 }, "last_updated": "2023-07-14T18:05:13.547892+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. WAYNE DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nIn a jury trial, defendant, Wayne Davis, was found guilty of rape, deviate sexual assault, armed robbery and unlawful restraint. The trial court held that the deviate sexual assault conviction merged into the rape conviction and sentenced defendant to serve 30 years in the Illinois Department of Corrections for rape and 20 years for armed robbery, the sentences to run concurrently On appeal, defendant contends that he was deprived of his statutory right to a speedy trial and his constitutional right to counsel of his own choice. For the reasons which follow, we reverse defendant\u2019s convictions and remand the cause for a new trial.\nI\nDefendant first contends that he was denied his statutory right to a speedy trial. (Ill. Rev. Stat. 1979, ch. 38, par. 103 \u2014 5.) The speedy trial statute provides that every person in custody for an alleged offense shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 103 \u2014 5(a).) Any delay occasioned by the defendant temporarily tolls, for the time of the delay, the 120-day period within which defendant must be tried. (Ill. Rev. Stat. 1979, ch. 38, par. 103 \u2014 5(f); People v. Williams (1981), 94 Ill. App. 3d 241, 247, 418 N.E.2d 840.) No other delay, whether caused by the State or by the court, will toll the running of the statutory period. People v. Neideffer (1975), 25 Ill. App. 3d 819, 822, 324 N.E.2d 46.\nThe record discloses that defendant was arrested on June 23, 1980, for offenses which were alleged to have taken place on June 12, 1980. Defendant was indicted on July 2, 1980 (indictment No. 80\u2014 4507) and, on July 15, 1980, his case was assigned to Judge Thomas J. Maloney for trial. Six days later, on July 21, 1980, defendant filed a motion for substitution of judges (Ill. Rev. Stat. 1979, ch. 38, par. 114 \u2014 5(a)), which Judge Maloney denied on August 12,1980.\nDefendant\u2019s speedy-trial argument focuses on the 237-day period from August 12, 1980, the date on which Judge Maloney denied defendant\u2019s motion for substitution, to April 6, 1981, when, pursuant to a supervisory order issued by the Illinois Supreme Court on March 26, 1981, Judge Maloney transferred defendant\u2019s case to Judge Arthur J. Cieslik. Defendant contends that Judge Maloney erred in denying his motion for substitution and that, as a result, all of Judge Maloney\u2019s subsequent actions in the case, including the continuances he granted, were void. Defendant submits that if the continuances were unauthorized, then none of the delays during this 237-day period properly may be attributed to him. We cannot agree.\nWhere a motion for substitution of judges is filed within 10 days after the case has been placed on the judge\u2019s trial call, the right to substitution is absolute. (Ill. Rev. Stat. 1979, ch. 38, par. 114 \u2014 5(a); People v. Peter (1973), 55 Ill. 2d 443, 458, 303 N.E.2d 398.) Upon the filing of a motion which is in compliance with the statute, the trial judge loses all power and authority over the case except to make the necessary orders to effectuate the substitution, and denial of the motion constitutes reversible error. (People v. McGlothen (1962), 26 Ill. 2d 392, 394, 186 N.E.2d 319; People v. Kostos (1961), 21 Ill. 2d 451, 455, 173 N.E.2d 469.) If a substitution motion is erroneously denied, all proceedings subsequent to the order of denial are void. (People v. Thomas (1978), 58 Ill. App. 3d 460, 463, 374 N.E.2d 795; People v. Ethridge (1966), 78 Ill. App. 2d 299, 304, 223 N.E.2d 437.) In our judgment, it is unnecessary to decide whether Judge Maloney improperly denied defendant\u2019s motion for substitution on August 12, 1980, because it is clear from our examination of the record that defendant was not ready for trial before any judge between August 12, 1980, and April 6,1981.\nIn determining whether the 120-day period has been tolled, the proper test is whether an act of defendant in fact caused or contributed to the delay. (People v. Shields (1974), 58 Ill. 2d 202, 204, 317 N.E.2d 529.) Furthermore, \u201c[a] reviewing court must carefully examine the surrounding facts and circumstances to prevent a mockery of justice either by technical evasion of the right to a speedy trial by the State, or by discharge of a defendant by a delay in fact caused by him.\u201d People v. Bevis (1980), 89 Ill. App. 3d 344, 346, 411 N.E.2d 1123.\nIn the instant case, Judge Maloney charged defendant with virtually all of the continuances which he granted between August 12, 1980, and April 6, 1981, because defense counsel repeatedly stated that they were not ready for trial. Although counsel did object to charging defendant with several of these continuances on the ground that defendant was not properly in Judge Maloney\u2019s courtroom, they never informed Judge Maloney that defendant was prepared immediately to proceed to trial before another judge. Nothing in this record supports defendant\u2019s argument that the delay in bringing him to trial was caused by the denial of his motion for substitution of judges. Rather, the delay occurred because defendant was not ready for trial. Thus, since defendant\u2019s own lack of preparedness prevented his being tried at an earlier date, we conclude that his right to a speedy trial was not violated.\nII\nDefendant next contends that he was denied his constitutional right to counsel of his own choice when Judge Cieslik removed Judith Halprin as his counsel and appointed the public defender in her place. The following facts are pertinent to our analysis of this issue.\nShortly after July 15, 1980, defendant\u2019s family retained Rick Halprin and Judith Halprin to represent him. On April 7, 1981, Judith Halprin moved to withdraw as counsel because she had not received her fee. Judge Cieslik denied this motion but appointed Halprin to represent defendant because she had been serving as his counsel for the previous nine months.\nPrior to trial, Halprin persisted in rearguing motions on which Judge Cieslik had already ruled. When Judge Cieslik threatened to hold her in contempt if she continued with this conduct, Halprin accused him of \u201cintimidating\u201d her. Before the parties began selecting a jury on July 15, 1981, Judge Cieslik denied Halprin\u2019s motion for leave to question prospective jurors during voir dire. During jury selection, Halprin repeatedly renewed her motion, stating that the judge\u2019s questioning of the prospective jurors did not permit her to evaluate properly their qualifications to serve as jurors.\nJudge Cieslik admonished Halprin to make no references which would \u201cpollute this jury\u201d and ordered her to raise only in sidebar discussions matters which did not concern the jury. Halprin then moved to withdraw as counsel because of \u201cintimidation.\u201d The court denied this motion. When Halprin continued to complain of her inability under the circumstances to select jurors, Judge Cieslik warned her that if she made one more similar comment in front of the jury he would declare a mistrial and hold her in contempt. After the next two jurors were tendered to her, Halprin said, \u201cThen with our apologies to the jury based on our necessarily limited information, [defendant] will excuse Mr. Keane and Mr. Weinstein.\u201d Judge Cieslik excused the two jurors, immediately called a conference in his chambers and cited Halprin for contempt because she had ignored his repeated warnings. Thereupon the case was continued to the following day, July 16, 1981, at which time Judge Cieslik stated that he was granting Halprin\u2019s earlier motion to withdraw and removed her as defendant\u2019s attorney. The court then fined Halprin $1,000 for contempt of court. In imposing this punishment, Judge Cieslik commented that Halprin had breached her duty to the court on several occasions and that he had endured \u201cmuch abuse\u201d from her.\nJudge Cieslik again informed Halprin that he was removing her from the case. Halprin objected on the ground that her motion to withdraw was not a \u201cstanding request\u201d but had been made only in response to the court\u2019s earlier rulings. When Halprin disclaimed any intention of requesting leave to withdraw, Judge Cieslik replied that he was going to remove her because she not \u201ccompetent enough\u201d and did not have \u201cenough experience\u201d to conduct herself properly and to provide defendant with an adequate defense. Although Halprin argued that only the defendant could terminate the attorney-client relationship, Judge Cieslik responded that since he had appointed Halprin, he had the authority to remove her once he determined that she could not \u201cproperly defend this defendant, ***.\u201d Judge Cieslik informed defendant that he had removed Halprin and was appointing the public defender in her place. Defendant acknowledged that he understood the court\u2019s actions and did not offer any objections. Judge Cieslik then declared a mistrial and continued the case to August 25, 1981.\nOn August 25, 1981, defendant asked Judge Cieslik to reappoint Halprin because the public defender did not have the \u201cbest intentions in my case.\u201d Judge Cieslik denied this request, stating that the court had appointed her and had \u201cthe right to revoke that appointment at any time it sees fit because of the conduct of the attorney.\u201d Defendant replied that if the court would not reappoint Halprin, he wanted to defend himself. Judge Cieslik ordered two assistant public defenders to serve as defendant\u2019s advisers but warned defendant that all decisions, questions, arguments and objections had to be made by the defendant himself. Defendant said that he understood and desired to represent himself. On August 26, 1981, trial commenced with defendant proceeding pro se.\nThe right to counsel guaranteed by the sixth and fourteenth amendments of the Federal Constitution, by article I, section 8 of the Illinois Constitution, and by section 113 \u2014 3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1979, ch. 38, par. 113 \u2014 3) includes the right to be represented by counsel of one\u2019s own choice. (People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116.) Defendant contends that this right was violated here when the trial court removed Halprin as defendant\u2019s court-appointed attorney.\nIn the instant case, Judge Cieslik expressed the view that since Halprin was no longer serving as retained counsel but had been appointed by the court to represent defendant, he therefore had the authority to remove her for incompetence even over the objections of both Halprin and the defendant. To subscribe to this view would, in our judgment, give rise to an impermissible distinction between indigent and nonindigent defendants:\n\u201c*** [W]e must consider whether a court-appointed counsel may be dismissed, over the defendant\u2019s objection, in circumstances in which a retained counsel could not be removed. A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary; it involves not just the [casual] assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client\u2019s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney\u2019s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. [Citation.] It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.\u201d Smith v. Superior Court (1968), 68 Cal. 2d 547, 561-62, 440 P.2d 65, 74, 68 Cal. Rptr. 1, 10. Accord, McKinnon v. State (Alaska 1974), 526 P.2d 18, 22; Harling v. United States (D.C. App. 1978), 387 A.2d 1101; English v. State (1969), 8 Md. App. 330, 336-37, 259 A.2d 822, 826.\nWe agree with the rationale of these cases and believe that for purposes of removal by the trial court, a court-appointed attorney may not be treated differently than privately retained counsel.\nIn the instant case, Judge Cieslik removed Halprin not, as the State has argued in its brief, as a sanction for contempt, but because he concluded that she was inexperienced and could not competently conduct a defense. \u201cThe defendant\u2019s constitutional right to counsel entitles him both to effective assistance by counsel and to counsel of his own choosing. Typically, both corollaries coexist symbiotically.\u201d (People v. Johnson (1979), 75 Ill. 2d 180, 185, 387 N.E.2d 688.) Here, however, where Judge Cieslik had determined that defendant\u2019s choice of counsel was not providing defendant with competent representation, one had to be sacrificed. The trial judge could not force the defendant to accept counsel other than counsel of defendant\u2019s own choosing. (People v. Johnson (1979), 75 Ill. 2d 180, 185.) Defendant\u2019s right to counsel of his own choice required that he be allowed to make a voluntary, knowing and understanding waiver of the right to competent counsel in order to receive the representation of his choice. People v. Johnson (1979), 75 Ill. 2d 180, 185-86.\nIn Johnson, the trial judge concluded that defendant\u2019s retained counsel was incompetent. The judge called both defendant and his attorney into chambers and, on the record, he advised defendant of the reasons why he believed defendant\u2019s counsel was incompetent; that defendant had a right to counsel of his own choice and, if defendant could not afford an attorney, to have one appointed for him by the court; that it was not feasible to call in standby counsel or assistant counsel; that defendant could continue with his present counsel but if he did, defendant would be deemed to have waived his right thereafter to assert incompetency of his counsel; and that if defendant wished to obtain new counsel, the judge would declare a mistrial so that defendant could obtain such new counsel. The trial judge then determined that defendant understood his rights and his alternatives. The defendant elected to proceed with his original attorney. The Illinois Supreme Court approved this procedure and held that defendant had voluntarily, knowingly and intelligently waived his right to competent counsel. People v. Johnson (1979), 75 Ill. 2d 180, 183-87.\nIn the instant case, had Judge Cieslik followed a procedure similar to that approved by the supreme court in Johnson, defendant could have made a voluntary, knowing and intelligent choice either to proceed with Halprin and waive the issue of competent counsel or to terminate his relationship with her and seek new counsel. Whatever choice defendant may have made, he could not thereafter reasonably have complained that he had been denied his constitutional right to the assistance of counsel. However, by virtue of the trial court\u2019s actions in this case, defendant was denied the opportunity of making this choice. Under these circumstances, we believe the court erred in removing Halprin as defendant\u2019s court-appointed counsel. Accordingly, we reverse defendant\u2019s convictions and remand the cause to the circuit court of Cook County for a new trial.\nReversed and remanded.\nDOWNING, P.J., and HARTMAN, J., concur.\nThe mittimus reflects that defendant also received concurrent 30-year sentences for both deviate sexual assault and unlawful restraint. No sentence for unlawful restraint appears in the transcript of the sentencing hearing.\nSince the filing of a motion for substitution of judges temporarily suspends the 120-day period (People v. McClure (1979), 75 Ill. App. 3d 566, 570-71, 394 N.E.2d 833), defendant has not added to this 237-day period the 22 days between July 21, 1980, the date on which the substitution motion was filed, and August 12, 1980, when the motion was denied.\nBecause of an illness, Rick Halprin was not able to represent defendant at trial.\nAlthough no appeal of the contempt citation is before us, we express our strong disapproval of tactics employed by any trial counsel that tend to impede or disrupt orderly court proceedings.\nJudge Cieslik removed Halprin before he determined what sanction he would impose on the contempt citation. After he fined her, he added, \u201c*** and as I had indicated you will also be discharged of your duties and obligations to this defendant because it\u2019s the opinion of this court, for purposes of the record, that you are not competent enough and you do not have enough experience to properly conduct yourself and to give this defendant a proper defense in this case.\u201d\nOn August 25, 1981, Judge Cieslik informed defendant that he had removed Halprin because \u201c*** her conduct was such that I felt you could not get a fair trial, ***.\u201d In urging defendant to accept the appointment of the public defender\u2019s office, the judge told defendant that if \u201cI felt that either one of these gentlemen could not properly represent you, I would do the same thing I did with reference to Miss Halprin.\u201d\nOn August 26, 1981, Judge Cieslik stated: \u201cI found her [Ms. Halprin] in contempt of this court and I excused her of her obligations because I felt you deserved better representation than she was giving you.\u201d \u201c*** [Y]our case was *** of such a magnitude that you deserved something better.\u201d\nIn open court, Judge Cieslik explained to defendant\u2019s uncle on August 26, 1981, that \u201c*** after I saw her in operation and I questioned her on how much experience she had with reference to this matter, it was my feeling, and I maintain that feeling, that she was not qualified to handle the defense of your nephew.\u201d\nThe State\u2019s reliance on People v. Lewis (1981), 88 Ill. 2d 129, 160, 430 N.E.2d 1346, and People v. Cox (1961), 22 Ill. 2d 534, 537, 177 N.E.2d 211, for the proposition that an indigent defendant does not have an unqualified right to counsel of his own choice is misplaced. In each case, the supreme court rejected defendant\u2019s claim that he had the right to select the attorney to be appointed for him by the court. (People v. Lewis (1981), 88 Ill. 2d 129, 160-61; People v. Cox (1961), 22 Ill. 2d 534, 536-37.) That is not the right defendant asserts here. Defendant sought only to keep the attorney the court previously had appointed for him. In Smith v. Superior Court (1968), 68 Cal. 2d 547, 561-62, 440 P.2d 65, 74, 68 Cal. Rptr. 1, 10, the Supreme Court of California held that the \u201cgeneral principle that an indigent defendant who requests counsel must be satisfied with the court\u2019s selection and is not entitled to demand that a different counsel be appointed,\u201d was \u201cobviously inapplicable\u201d to the situation where the attorney who had been removed \u201cwas himself the counsel appointed by the court *** to represent [defendant] in these proceedings, and [defendant] is demanding not to change that appointment but only to enforce it.\u201d\nPeople v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767, is likewise inapposite. In Spurlark, the appellate court held that the trial court was justified in appointing an attorney to represent defendant over defendant\u2019s objections where his retained attorney was continuously unavailable for trial for more than two years. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 198.) Cases decided both before and after Spurlark have been concerned with a defendant using his right to counsel of his choice to avoid going to trial. (See People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116; People v. Washington (1968), 41 Ill. 2d 16, 20, 241 N.E.2d 425; People v. Guice (1979), 83 Ill. App. 3d 914, 918, 404 N.E.2d 261, where the court found that defendant had no intention of obtaining counsel and was attempting to use her right to counsel \u201cas a tactical device to prevent her case from ever being brought to trial.\u201d) None of these cases is applicable here.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Robert D. Glick, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O\u2019Malley, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE DAVIS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 81\u20142444\nOpinion filed May 10, 1983.\nJames J. Doherty, Public Defender, of Chicago (Robert D. Glick, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O\u2019Malley, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0537-01", "first_page_order": 559, "last_page_order": 567 }