People v. Baez

              Docket No. 98911.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
TEODORO BAEZ, Appellant.
Opinion filed February 25, 2011.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier,
and Burke concurred in the judgment and opinion.
Justice Theis took no part in the decision.
OPINION
Defendant Teodoro Baez pleaded guilty to the murders of Juan
Estrada and Janet Mena. The circuit court of Cook County found
defendant eligible for the death penalty and, after weighing the
evidence in aggravation and mitigation, sentenced defendant to death.
On October 18, 2005, this court remanded the cause to allow
defendant to file a late motion to withdraw his guilty plea. After an
evidentiary hearing, the circuit court denied defendant’s motion. His
appeal lies directly to this court under Supreme Court Rule 603 (Ill.
S. Ct. R. 603 (eff. Oct. 1, 2010)). For the reasons set forth below, we
affirm his sentence.
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BACKGROUND
The following background facts are drawn from the stipulated
testimony in support of the factual basis for defendant’s plea of
guilty. On August 6, 1999, the body of Juan Estrada was discovered
in a grassy area at 3542 West Carroll Street in Chicago. Estrada’s legs
were missing. On August 9, 1999, a human leg was recovered from
the Chicago River at West North Avenue. Another leg was found
shortly thereafter, and a left arm was also found nearby. The legs
were later matched to Estrada, and the arm was later matched to Janet
Mena. On August 10, 1999, Mena’s body was discovered in a vacant
lot in at 1810 West Walnut in Chicago. The head and left arm had
been severed and removed, but the head was found at the same
location as the body. Mena’s car was found parked near a restaurant
in Berwyn on August 11, and Estrada’s car was found at 3720 West
Berteau in Chicago on August 12. Estrada’s car had been ticketed at
that location on August 10.
Dr. Joseph Lawrence Cogan, an assistant medical examiner,
testified that he performed a postmortem examination of Juan
Estrada. According to Cogan, the amputation of Estrada’s legs
appeared to be postmortem. Estrada’s left shoulder had also been
partially amputated. Cogan also found 24 incised wounds on
Estrada’s body. He explained that incised wounds are elongated cuts
created when a sharp instrument is drawn along the cut surface.
Sixteen of the incised wounds were on Estrada’s head, while the
others were concentrated in the arms. Cogan described the arm
wounds as “defense-type wounds.” Cogan also found 14 stab wounds,
which differ from incised wounds in that they are “penetrating.” The
stab wounds were on various parts of Estrada’s torso, chest, and back.
Estrada had also been shot twice, once in the right chest and once in
the right back. Cogan opined that the cause of death was multiple
injuries due to an assault.
Cogan also performed a postmortem on Janet Mena. Parts of
Mena’s body were “very decomposed.” In particular, Cogan described
Mena’s head as “half skeletonized” and not “recognizable visually.”
A skull fracture on Mena’s left side corresponded to a cut over her
left ear, and Cogan opined that this was “some kind of a blow or chop
injury with a sharp instrument.” He also found evidence of a blunt
force trauma to the left side of the head and possible evidence of
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strangulation. On Mena’s body, Cogan found four stab wounds to the
back, along with several smaller cuts that he associated with the
amputation of the head and arm. He also identified a wound in the
posterior vaginal area that was associated with increased insect
activity. Cogan noted that this increased activity suggested the
presence of bleeding, which would indicate that Mena was still alive
when the wound was inflicted. He also noted, however, that the
wound itself gave no indication of whether it had been inflicted
before or after death.
Defendant’s Statement
Defendant was interviewed on January 30, 2000, at Area 4
Headquarters in Chicago. The videotape of this interview was
admitted into evidence at defendant’s guilty plea and at his sentencing
hearing. The tape includes defendant’s waiver of his right to counsel
and his right to remain silent, including full Miranda warnings.
Defendant stated that he had arranged to meet Juan Estrada at
around midnight on August 5, 1999, to buy heroin. Defendant met
Estrada at a gas station near defendant’s home, and directed Estrada
to drive to defendant’s home. Defendant had never seen Estrada’s
female passenger, Janet Mena, before. When they arrived at
defendant’s apartment building, Estrada and defendant went up to
defendant’s apartment while Mena waited in the car.
Once in defendant’s apartment, defendant tried to give Estrada
money for heroin. However, Estrada refused to accept the money
because defendant owed him approximately $1,000. According to
defendant, Estrada became “hostile,” calling defendant “bitch, asshole
and punk.” Defendant began to feel “discomfort” because defendant
“didn’t understand why he would not cooperate.” Defendant also said
that he felt “threatened by his words and his hostile body language,”
which defendant said consisted of “tightening or tensing up of the
muscles” and “waving of the arms.” However, defendant
acknowledged that Estrada did not have any weapons on him, and
that Estrada had done nothing threatening other than lifting his arms
and yelling.
Defendant described what happened next: “At first I tried to
negotiate with him and then when I felt negotiation was not possible,
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I reacted in a truly hostile manner and retrieved a small revolver,
small caliber revolver from my waistband and shot Juan Estrada a
couple of times.” Defendant could not remember how many times he
had shot Estrada, but he said that Estrada began to scream. Defendant
told him to “shut up and be quiet.” When defendant “felt that the gun
was no longer useful,” defendant took one of his swords down from
the china cabinet in his apartment. Defendant explained, “I was in a
fit of rage and I was, I was paranoid that the gun was making too
much noise and I had chose [sic] to kill Mr. Estrada.” When asked
why he had decided to kill Estrada, defendant replied, “After I had
shot him, I figured I was gonna die if I allowed him to live anyway
because I was aware of his squad *** and I did not want him to send
them after me.”
Defendant stated that when he grabbed the sword, he intended to
“[t]ake the life from Mr. Estrada,” and he began “hacking and
stabbing” Estrada “numerous times.” “So many times,” defendant
claimed, “that I can’t even count.” While defendant was “chopping
away at Juan Estrada,” Estrada asked defendant why he was doing it.
Defendant told Estrada it was “because he was trying to turn some
members of our organization against me.” According to defendant,
Estrada was still standing when defendant began striking him with the
sword, but he eventually fell to his knees, and defendant kicked him
down onto the floor. When defendant believed Estrada was dead, he
stopped stabbing him and began to wipe up Estrada’s blood with
some towels. Defendant told investigators that Estrada looked “gory,”
with “many slashes” to his head and hands and “stab wounds to his
body.” When asked why he had slashes on his hands, defendant
explained that Estrada had tried to defend himself from the sword
with his hands.
Once defendant had wiped up the blood around Estrada’s body,
he made himself “look presentable.” He then went downstairs so that
he could “coerce the female into coming into the apartment,” because
he was afraid that “she would be a witness to the last known place”
of Estrada. He told Mena that Estrada “was gonna be awhile, would
she like to come up,” and she agreed. After defendant allowed Mena
to use his bathroom, he asked her if she wanted a drink. Defendant
explained that he “cunningly closed the door to keep her from
observing Mr. Estrada’s death.” She accepted his offer of a drink, and
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when she turned her back defendant began to strangle her. Defendant
told investigators that he “choked her until she was semi-conscious”
and defendant “thought she was unable to defend for herself.” He said
that he tried to choke her “until she was dead”–at least three
minutes–during which time “[s]he was saying her final prayers. She
was asking for the Lord or Jesus in small moans and grunts.”
Defendant described what happened next: “And after *** I had got
done choking her, I stood above her and seen that she was still
squirming for air so I began to kick her around her upper vertebras of
her spinal cord to induce death.”
After kicking her neck, defendant dragged Mena into the
bathroom. He then went back to Estrada and dragged him into the
bathroom as well. He placed Estrada’s body in the bathtub and began
to run the water, “so that the blood could flush down the faucet.”
Mena, however, was still alive and had “turned her attention away
from God and was then calling for Juan.” Defendant picked Mena up
and “threw her in the tub” on top of Estrada’s body. According to
defendant, Mena “still had some life in her.” He then “stabbed her a
couple of time hoping that her blood would also drain down the tub.”
“After a while,” defendant took Mena out of the tub and stripped her
naked. He then placed her head in the toilet and stabbed “her brain
stem,” flushing the toilet to allow “excess blood” to “drain down the
toilet bowl.”
Once he believed both victims were dead, defendant decided to
“remove both victims’ heads.” Defendant stated that his intention was
to dismember the bodies so that he could remove them from his
apartment “in a manner which would not alert public eye attention.”
He began to “chop at” Mena’s head with the sword, but “gave up
before the task was done.” He then turned to her arm. “When I got to
the bone,” defendant stated, “it was hard to break the bone so I left
both of the victims in the restroom and searched for a different
weapon and came back with a hacksaw and I sawed her off.” He put
Mena’s arm into a garbage bag. He then loaded Mena’s body into
another garbage bag and placed that bag into a garbage can, which he
put in his trunk. Defendant got into the car and drove around Chicago
until he found a “suitable” place to dump the body at the corner of
“Wood and Carroll Street.” He took the bag containing Mena’s body
out and left it in the lot, and then he took the garbage can back to his
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apartment.
Back at his apartment, defendant got out a battery powered
electric saw to dismember Estrada. Defendant said that he “chopped
away” at Estrada’s neck and right arm, but decided not to remove
them. Instead, he decided to remove Estrada’s legs, and he
accomplished this using the hacksaw and the electric saw. He then put
Estrada’s body into the garbage can and covered his head with a
garbage bag. Defendant loaded the garbage can into his car and found
a place to dump Estrada’s body near “Carroll Street and Sacramento.”
Defendant then returned to his apartment and retrieved the limbs
he had removed from the bodies, as well as “some other bags full of
soiled articles.” He took the bags to the Chicago River and tossed the
limbs in one at a time. He then drove around dumping the other bags.
Defendant then went back to the apartment again and retrieved
Estrada’s jewelry and the weapons, except the swords. These items,
too, defendant discarded around town. With respect to the swords,
defendant said, “I couldn’t just throw them away because they’re
noticeable objects in the house cause they were decoration. And to
just get rid of them all of a sudden would arouse suspicion.” Instead,
defendant’s girlfriend took the swords to her cousin’s house.
Pretrial Proceedings
Defendant’s first claim of error on appeal relates to certain
proceedings that occurred before any evidence was taken in this case.
We review the relevant pretrial proceedings.
On March 16, 2000, defendant appeared in court accompanied by
Charles Buchholz, an assistant public defender with the office’s
murder task force. On May 24, 2000, defendant appeared again, and
the court indicated that defendant had mailed two letters directly to
the court. The first letter was addressed to the court and requested the
court’s help in getting defendant into protective custody because he
did not feel safe in the jail. Buchholz, again appearing with defendant,
indicated that he had “taken care of that matter.” The second letter
was a copy of a letter defendant had sent to the Attorney Registration
and Disciplinary Commission (ARDC) regarding Buchholz. When
asked about the letter, defendant stated that he wanted to file a
“motion for appointment of counsel other than a public defender.”
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The court indicated that defendant’s letter appeared to be “basically”
such a motion. The letter raised several complaints, and the court
addressed each one in turn.
Defendant’s complaint first alleged that Buchholz was not “truly
versed in the law,” because Buchholz had refused to file a “motion to
arrest judgment” at defendant’s request although a law librarian at the
jail had told defendant such a motion was possible. Defendant’s letter
also complained that Buchholz had sent another attorney to court with
defendant rather than appear himself, and no attorney had been to
visit his loved ones. The court explained to defendant that there is no
such thing as a “motion to arrest judgment.” The court also explained
that it is common for attorneys to appear on each other’s behalf for
some court appearances. Finally, the court told defendant that his
attorneys were not required to visit his loved ones, but that they could
make appointments to talk with the attorneys.
Defendant also alleged in his letter that Buchholz had threatened
to kill him. According to the letter, defendant had complained to
Buchholz that “some powerful Columbian drug lords and the Satan
Disciple organization” had offered money to anyone who would kill
defendant. Defendant claimed that Buchholz had asked how much
was being offered, and then said, “We’ll kill you if they are paying
enough!” Defendant wrote that he was “astonished” and “could no
longer trust” Buchholz. In court, Buchholz said that the ARDC had
asked Buchholz to respond to defendant’s allegation and he had done
so. Buchholz also informed the court that the ARDC had indicated no
further action would be taken. Defendant’s letter to the ARDC also
repeated the concerns about defendant’s safety that he had raised in
his letter to the court.
After reviewing the complaints raised in the letter, the following
discussion occurred:
“THE COURT: Is there any other complaint that you
would like to lodge against your attorney?
DEFENDANT: I just don’t feel comfortable with Mr.
Buchholz, and I prepared a formal written motion, but I guess
we have taken care of that, verbally.
THE COURT: All right. Well, everything that you have
just–what you allege in here are things that are not the basis
1The circuit court later indicated that the motion was not received by the
court on April 2; it is not clear when the motion was actually filed and
received.
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of having another attorney. And, Mr. Baez, you have a right
to an attorney, but not an attorney of your choosing. ***
When you are appointed an attorney, and charged with
murder, you are appointed someone who has worked on many
murder cases on many occasions.
* * *
If Mr. Buchholz is not doing his job, then that is one
thing. You can, certainly, bring that to my attention.
***
And as I said, Mr. Baez, if there is something, some other
issue, other than the issues that I just put on the record, you
can, certainly, share that with me.
DEFENDANT: No, ma’am, and I don’t mean to turn your
courtroom into a mockery or anything.
THE COURT: All right. Mr. Baez, it is just lack of
knowledge. I am not holding that against you.”
On July 6, 2000, just over one month after the above discussion,
defendant appeared in court again, represented by Buchholz.
However, at defendant’s next appearance on August 31, 2000, private
attorney Jeffrey Granich sought leave to file an appearance. The court
granted Granich’s request. On September 20, 2000, Granich appeared
along with Buchholz, who requested leave to withdraw. The court
allowed Buchholz to withdraw. Between September 2000 and April
2001, Granich appeared on defendant’s behalf four times. During one
of these appearances, Granich requested a sanity evaluation; no other
substantive matters occurred on the record in this time.
On April 2, 2001, the State filed its notice of intent to seek the
death penalty. During the same appearance, Granich indicated that he
was filing a motion for appointment of counsel for defendant under
the Capital Crimes Litigation Act.1 The motion was continued to
allow the State time to respond, and on April 19, 2001, the State
declined to take a position on the motion. The following discussion
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then occurred:
“THE COURT: All right. Counsel, I don’t know the
procedure to go through other than to say that you are
appointed. But that is fine with me. You will be appointed
and paid through the county through a special fund.
GRANICH: I also asked in my motion that a trial partner
of mine that the Court is aware of, John Theis, also be
appointed with my office to work on this case.
What is actually going to happen, Judge, is I am taking
this as of June 1st. John has agreed to come in on this case
and would take over the litigation of this case until I return. I
am going on vacation.
THE COURT: All right. Now, I don’t know if capital
litigation will appoint two private lawyers. I am not sure. I am
not familiar enough with it. Certainly at this time I will
appoint you as trial counsel. Has the attorney filed a motion?
GRANICH: We discussed this case at great length. I
informed him that I was going to be filing this motion. He
asked to be included in it. I did include him in the motion.
Judge, I think there was some–In the motion I filed some
statutory authority. I believe that there is some comment that
for a death penalty case two lawyers should be appointed.
THE COURT: Well, there certainly is language that the
defendant should have two lawyers. The public defender, they
would appoint two lawyers. Private counsel I am not certain.
I will appoint you today and then you can raise the issue.
GRANICH: It sounds great.”
On May 9, Granich appeared along with John Theis. The court
indicated that it had not yet reviewed the relevant statutes but would
do so before the next court date. The following dialogue ensued:
“GRANICH: Can I suggest May 22nd? That’s a short
date. The only reason I’m asking, Judge, I plan on leaving as
of May 25th. That’s why I was seeking to have Mr. Theis
brought in on this case as well.
THE COURT: Are you saying you won’t even do the
case?
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GRANICH: I anticipate returning and trying this case
when necessary, Judge, but, what I had anticipated was Mr.
Theis would carry on the case while I was out of town and
then I would be returning to try the case.
THE COURT: You need to put something in writing for
me, Counsel, when you’ll be gone, because we’ll have
substitute counsel rather than two attorneys on this case.
GRANICH: All right.
THE COURT: *** I need it in writing what you intend to
do, when you intend to leave. If you can get that to the State
by the 16th, I can review it.
* * *
The statute says–Supreme Court rules talk about a certain
number of attorneys. I don’t know that it speaks to the county
paying for two and maybe a private attorney and a Public
Defender.”
The case was continued to May 22, 2001. On that date, the court
reviewed the history of the case on the record and then indicated that
it had discussed the appointment of Theis with the parties in
chambers:
“I informed Mr. Granich and the state’s attorney in my
chambers that I don’t think that this is something that legally
I can do because there is really no basis for appointing private
counsel on Mr. Baez’s case.
Counsel represented to me I think a month or two ago that
Mr. Baez paid him less than five thousand dollars on a capital
murder case. On a capital murder case I cannot imagine
counsel being able to proceed on the case with *** less than
50 thousand dollars, and because of that it is clear if Mr. Baez
can’t pay more than five thousand dollars that he cannot
afford private counsel.
I cannot give him private counsel just because he wants
private counsel. There has to be a reason for appointment.
There are excellent attorneys in the public defenders murder
task force and one of those attorneys will be appointed to
represent Mr. Baez.
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If this were a case that were near trial and everybody was
ready then I could see kind of stepping in and completing it,
but we’re at the beginning of this case and in actuality murder
cases, especially death penalty cases, are not disposed of in
less than two years that I’ve ever seen, so I cannot see any
justification for the appointment of private counsel.
I would not only require the county to pay for the
representation of two lawyers but possibly for an investigator,
mitigation specialists, all those people that the public
defender has on their staff, at least the investigator, and all of
the personnel that work for them.
So I am going to withdraw the appointment–vacate my
appointment I guess of Mr. Granich and reappoint the public
defenders, the murder task force on Mr. Baez’s case.”
Granich objected, and the following discussion occurred:
“GRANICH: Judge, just for the record, I do believe that
there is authority for private counsel to be appointed in the
motion that I filed that the court originally granted. I cited
instances where courts in Illinois have appointed people using
the Capital Crimes Litigation Funds Act and also the Capital
Crime Litigation funds to pay for mitigation specialists,
experts and private counsel.
Based on the Court’s ruling today I presume I would be
seeking leave to withdraw my appearance over my objection.
THE COURT: Certainly, counsel. But the fact of the
matter is in those cases there was some justification for it. The
only particular case that I’m really aware of when it’s at the
eve of trial when private counsel has been appointed. I’ve
never seen a private attorney appointed at the beginning of a
case when the family obviously cannot afford private counsel.
Now he cannot afford private counsel. It’s just that simple.
And the county cannot afford to give people private counsel
just because they want it. All the money in the capital
litigation funds would be gone in six months if I appointed
everybody who wanted a private lawyer to have it in their
case, and the fact is that there are excellent attorneys in the
murder task force and with all deference to you and Mr. Theis
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both of whom I respect and admire, all lawyers in the murder
task force probably have two or three times the experience
that you gentlemen have in death penalty cases, and so it’s
just no justification for it.
All right, the public defenders murder task force will be
appointed and private counsel’s appointment is vacated.”
The court also noted defendant’s previous complaints about Assistant
Public Defender Buchholz, and the court directed Assistant Public
Defender Stu Smith, who was present in the courtroom, to ask that
Buchholz not be reassigned to the case. The court then addressed
defendant directly, telling him that he would be given time while the
public defender assigned new counsel. The following colloquy then
took place:
“DEFENDANT: May I plead guilty to this case? I’d like
to change my plea.
THE COURT: Well Mr. Baez, let me tell you this. You
have the absolute right to plead guilty. However, I think you
need to first talk to an attorney. I think you said this to me
before.
DEFENDANT: No. I been deciding this since the incident
occurred.
THE COURT: I don’t want you to talk about the facts of
the case at all, Mr. Baez. I’m almost certain that you made a
statement similar to this in court before. But let me say this to
you. When you get another attorney on the case you talk to
that attorney about your desires, your options. Wait until the
attorney gets all the reports on this case and they have an
opportunity to review those reports and to talk to you about
the strength or weaknesses of the case. And if you want to
plead guilty then you tell the lawyer that that’s your desire.
That lawyer can talk to you. They can talk to the State. They
can possibly get a resolution of your case. I don’t know.
They may involve me in the resolution of your case. I
don’t know. I can’t get involved in it unless both parties
agree. Do you understand what I’m saying?
DEFENDANT: Yes, ma’am.
THE COURT: So just wait until you have an opportunity
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to talk to the lawyer. Actually there will be two lawyers I’m
sure who will be appointed on the case from murder task
force. Talk to them. But give them an opportunity to get all
the evidence and review it so they can have an intelligent
conversation with you to let you know what your options are
and what they will think is best for you. Listen to what they
say, sir?
DEFENDANT: Yes, ma’am.
THE COURT: Of course it’s ultimately your decision.
And only your decision. All right. I’m going to give it a two
week date?
DEFENDANT: No, Friday please.
THE COURT: Okay. Counsel.
[Assistant Public Defender] SMITH: Judge, may I address
the Court on two matters. One is in addition to all the matters
that the Court pointed out here, factors the court considered,
I’m also aware counsel indicated to me and may have
indicated in a written motion Mr. Granich is going to be out
of the country for at least six months and I believe that is
going to be soon.
GRANICH: At this time, Judge, I’m not sure how long I
will be gone.
THE COURT: I know Mr. Granich on the last two court
dates he has been in front of me he represented he’s going to
be gone some period of time. I asked him to tell me in writing
how long. As of this moment he hasn’t I think said how long
but he did say he thought months when we had the
conversation.
GRANICH: That is correct.
THE COURT: That’s really not the major issue. It’s
whether or not I can appoint private counsel when in effect
counsel has not been hired. Because five thousand dollars is
not hiring an attorney in a death penalty case.”
The case was then continued to June 12, 2001, when Buchholz
appeared with defendant. The parties indicated that all discovery was
complete except for certain information relating to the factors in
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aggravation. Buchholz informed the court that he was still in the
process of obtaining some of the files from the attorney who was
“taking over Mr. Granich’s practice,” and the case was continued to
July 11. On that date, the parties again agreed to continue the case for
additional discovery and pretrial motions. Buchholz, who again
appeared, requested September 25, indicating that he intended to be
on vacation “most of September.”
On September 25, 2001, defendant again appeared with Buchholz.
Before other business was conducted, the court asked defendant what
he wanted done with a letter he had sent to the court. That letter does
not appear in the record. The following discussion occurred:
“THE COURT: *** I want to know if you want me to tear
it up or give it to your lawyer or what?
DEFENDANT: I was, I was asking the Court if I can
proceed pro se?
THE COURT: I thought we had this discussion before?
DEFENDANT: No, we had a discussion about me
receiving a new lawyer, and that ended in a no.
And then I tried to obtain my own lawyer, and we’re all
familiar with the outcome of that, and I’d like to proceed pro
se.
THE COURT: You certainly have the right to proceed pro
se, Mr. Baez, if you want to do so. I wouldn’t suggest it. But
you certainly have the right to do so.
Have you been communicating with Mr. Buchholz?”
Defendant responded that he had not seen Buchholz since before the
last court date in July. Buchholz explained that he had been trapped
out of the country by the events of September 11, 2001, but that he
and defendant had “communicated.” The court then addressed
defendant’s request:
“THE COURT: I know you talked to him. I wanted to put
it on the record.
Let me say this, Mr. Baez. I certainly think that it would
be completely unwise for you to try to represent yourself. I
read the, just the first paragraph of your letter that you sent to
me.
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* * *
Let me–just from reading the first paragraph, let me
explain that what you’re saying in here, you want Mr.
Buchholz [sic] to have a serious conversation on your behalf.
He has to have everything, every single piece of discovery
that the State has, and they just filed a supplemental answer
to discovery today and what we call an answer to discovery,
that has additional material. Behind these pieces of paper may
be volumes of sheets of paper. He has to get all of the
materials that the State has.
There’s also what’s called mitigation evidence, which
means evidence that would be to your benefit. Possibly
witnesses, things about your background. Of course, I know
nothing about you at all. Your schooling, those kind of things.
* * *
First he needs that, then he has to get the information from
you that you have before he has a discussion with them, with
the State.
DEFENDANT: He told me that he, because I already
admitted to the crime–
THE COURT: Well, I have absolutely no idea, and he
may be right. If he said that, I don’t–because I don’t know
anything about that.
But before a lawyer can negotiate for you, this is a
possible death penalty case. That is a possible disposition of
the case. That’s final, and you know that?
DEFENDANT: Yes, ma’am.
THE COURT: Before he can negotiate a disposition of
your case, he needs to have everything in his power,
everything good about you, certainly, to present to them, and
anything that you can present that would help him negotiate
for you.
I think you ought to give Mr. Buchholz an opportunity to
review all his materials, to sit down with you[.]
* * *
He’s a very thorough man, the state’s attorney. He will
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know everything about his case. Mr. Buchholz has to know
everything about you before they can get together and try to
negotiate.
DEFENDANT: I don’t think anybody knows anything
better pertaining to the case than I.
THE COURT: Well, you know, you may know more
about what happened. But you don’t know about the law, Mr.
Baez. You don’t know the negotiation process, because you
have never been in this position.
DEFENDANT: Exactly.
THE COURT: All right.
So it’s absolutely best for a lawyer to try to negotiate for
you rather than try to negotiate yourself.
And, I mean, that is just the bottom line. You can do
whatever you like. If you want to represent yourself, I’ll give
you all the admonishments that the law requires, and if you
decide to represent yourself against my advice, I mean, that’s
what you will do.
But you will be at such a disadvantage, you will be at such
a disadvantage if you are negotiating with the State on your
own, you might tell them things Mr. Buchholz might not tell
him. You might tell them things that would help them try the
case against you rather than help you out.
He knows the things that are going to benefit you and he
knows the things that are going to hurt you, because he knows
the law and you don’t.
So I would suggest that you let him proceed on your case.
* * *
He just knows so much more about it than you.
I’m saying that because I don’t–I just think you’d be
insane to try to represent yourself.
DEFENDANT: I feel that is the best thing for me.
THE COURT: All right.
We can do–would you do this for me? Before you make
your decision, will you let Mr. Buchholz review the materials
-17-
he has, sit down with you one more time and talk about the
case, talk about–if you still desire to do what you say in this
first paragaph, and if you sit down with him and he will talk
to the State before the next date, I’ll give you a long enough
date to have that conversation, and he can give you an answer
from the State, whatever.
Once you have had that conversation, if you still want to
get rid of your lawyer, I’ll give you all your admonishments
and then you will proceed on your own.
But once you make that decision, you will be on your
own.
* * *
You’re in an unbelievably terrible position when you try
to represent yourself. *** I would not possibly represent
myself, even as a lawyer, and I have been a judge fourteen
years, a lawyer for twenty-seven. I would not represent myself
no matter what the charge was.
All right?
DEFENDANT: Yes, ma’am.
THE COURT: Mr. Buchholz, what I’d like you do is have
a conversation with him, sit down at the jail before the next
court date, and then sit down with Mr. Brogan.”
Buchholz indicated that he would meet with defendant and that he
had just hired a mitigation expert, and the court explained the role of
the mitigation expert to defendant. The court noted that the mitigation
expert would need time to compile her report, and then it turned back
to defendant’s request:
“[THE COURT:] So I think you ought to be a little more
patient and realize that even though you think that
representing yourself might be to your benefit, it may seal
your fate.
All right?
DEFENDANT: Yes, ma’am.”
At the end of this discussion, the court repeated its instruction to
Buchholz to meet with defendant to discuss all of the discovery that
had been tendered, and the parties agreed to continue the case to
2The cover sheet on the report of proceedings for the preliminary case
management conference erroneously lists the date as April 26, 2001.
However, the corresponding docket entry is dated March 5, 2003.
-18-
November 13, 2001.
At the November 13 court appearance, Buchholz informed the
court that he had met with defendant the previous week to review all
of the “new discovery,” including the videotape of defendant’s
interview with police. The court then addressed defendant, saying,
“All right. You have got[ten] to talk to your attorney and see the
videotape.” The court did not ask defendant about his prior request to
proceed pro se, but defendant replied, “And I agree to have counsel
represent me.”
Buchholz appeared with defendant once more in December 2001,
but he left the public defender’s office later that month. On December
28, the case was continued to allow new counsel to be assigned to
defendant. On January 15, 2002, Assistant Public Defender Joseph
Kennelly appeared with defendant. Kennelly represented defendant
for the remainder of the proceedings in the circuit court.
Between January 15, 2002, and February 7, 2003, the case was
continued several times. On March 5, 2003, a preliminary case
management conference was held.2 Defendant was represented by
Kennelly, who indicated that the parties anticipated a plea. The court
reviewed the discovery that had been tendered to that point, and then
defendant interjected:
“Ms. Lampkin, I can guarantee we are not going to trial. I
have been talking with my lawyer. I think he keeps putting me
off. I am sure that I am pleading guilty. I am trying to get him
to plead me guilty. For some reason he said the State won’t
agree. I would like the State–Why don’t they agree for me
pleading guilty?”
The court reminded defendant that he was eligible for the death
penalty and reiterated the importance of making sure his attorney had
all available information before defendant entered a plea. Defendant
responded, “I understand. But my whole point is I would like to get
it over with as soon as possible.” The court replied, “I can understand
that, because it’s been something that’s hanging over you. You want
-19-
to get it resolved,” and defendant agreed, “Yes.”
After inquiring again about how long it would take to finalize the
discovery, the court stated, “All right. So that is what we will do. We
will bring you back here in a week or ten days. Whenever both sides
are ready, we will sit down. And, of course, Mr. Kennelly if he wants
to plead guilty, it’s his right. Of course, you know that. He just has to
give you his best advice.” Defendant replied, “He has been doing a
great job of it.”
Pretrial Proceedings
On June 27, 2003, defendant entered a plea of guilty to two counts
of intentional murder. The court fully admonished defendant, who
agreed that he was pleading freely and voluntarily. The court then
inquired about defendant’s representation:
“THE COURT: Mr. Baez, you discussed this matter, your
case with [Assistant Public Defender] Kennelly and [Assistant
Public Defender] Farrell?
DEFENDANT: Yes.
THE COURT: They have visited you a number of times
in the jail, sir?
DEFENDANT: Yes, ma’am.
THE COURT: Are you satisfied, sir, with their
representation?
DEFENDANT: Yes.
THE COURT: Is there anything you want them to do that
they have not done prior to you entering this plea of guilty,
sir?
DEFENDANT: No, they pretty much go do what I ask.
THE COURT: I know every time you came into court you
indicated that you wanted to plead guilty. But I wanted to
assure myself there was no problem with Mr. Kennelly. I
don’t know Miss Farrell, but I know you’ve been with [Mr.
Kennelly] for quite some time on the case. You’re satisfied,
then I’m certainly satisfied.”
The State presented evidence in support of the factual basis for
defendant’s plea, which included defendant’s videotaped statement.
-20-
The court found a factual basis and entered a finding of guilty of first
degree murder with respect to each of the victims.
On August 20, 2003, the court found defendant eligible for the
death penalty based on his convictions for intentional murder. The
case then proceeded to the sentencing phase. Evidence in mitigation
and aggravation was taken over several court dates between
September 3, 2003, and February 27, 2004.
Evidence in Aggravation
In aggravation, the State resubmitted defendant’s videotaped
statement recounting the manner in which defendant committed these
murders. Additional evidence in aggravation is described below.
Defendant’s Juvenile and Criminal Histories
The State presented stipulated copies of defendant’s prior felony
convictions. In 1996, defendant was sentenced to two years for felony
theft and seven years for armed robbery after pleading guilty on both
charges. The theft occurred when defendant broke into a Dunkin
Donuts where he had previously been employed and stole money
from a locked office. In a separate incident, defendant and an
accomplice returned to the same Dunkin Donuts store, and defendant
threatened store employees and customers with a handgun. He then
removed money from the cash register and cash box. Defendant was
incarcerated on May 10, 1996, and paroled December 8, 1998. During
his incarceration, defendant was disciplined four times for insolence
and related behavioral charges. Defendant was also written up once
for gang-related activity after he displayed a gang hand signal. None
of these incidents involved any injuries, however, and defendant did
not lose any good-behavior credit. Also in 1996, defendant was
sentenced to two years in the Department of Corrections for unlawful
use of a firearm by a felon. Defendant pleaded guilty to that charge
after officers discovered that defendant was carrying a loaded
revolver on a city bus. The underlying felony was a 1994 Michigan
conviction for possession of a controlled substance.
The State also presented evidence of defendant’s juvenile record
in Michigan. That record includes at least 10 petitions filed between
March 9, 1990, and September 24, 1993, alleging seven counts of
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breaking and entering, six counts of unlawfully driving away a motor
vehicle, one count of deserting his home without justification, and
one count of retail fraud. All but one of the breaking and entering
counts alleged that defendant broke into an auto body shop with the
intent to commit larceny therein. Documents also showed that
defendant had been terminated from a drug abuse treatment program
for threatening a patient and a psychiatrist in 1990, and that he had
left his group home several times without permission in 1992.
Finally, a petition filed February 5, 1993, alleged that defendant had
assaulted a victim with a weapon in an incident involving four other
perpetrators.
Defendant’s Behavior in Custody
On August 27, 2002, defendant was involved in an altercation in
the Cook County jail. According to a witness, defendant approached
fellow inmate Jon-Pierre Blackamore after a recreation period and
stabbed him in the neck. The witness, a correction officer, then lost
sight of defendant and Blackamore. After the incident, officers found
a homemade knife made of sharpened metal, called a “shank,” in the
recreation area. Blackamore was stabbed twice in the chest and once
in the neck, causing a collapsed lung, but he recovered. A statement
made by defendant regarding the stabbing was excluded by the court.
The State also presented the testimony of Alan Mitchell, a
correctional officer with the Cook County sheriff’s department.
Mitchell testified that on October 19, 2003, he was monitoring
defendant and two other inmates in the “staging area” of the Cermak
Health Center. Defendant and the others were all handcuffed and
wearing leg shackles, but they were not shackled to one another. He
explained that the staging area was adjacent to the emergency room,
and it is where inmates wait to be seen by the doctors and nurses.
Mitchell stated that when the other correctional officer left the staging
area to investigate a disturbance in the emergency room, defendant
and the other two inmates with him got up and tried to get into the
emergency room from the staging area. Mitchell tried to stop them,
and the two inmates with defendant started swinging at Mitchell, who
fell to the ground. When he got back up, defendant approached him
from the rear and struck him twice in the back of the head. Before the
three inmates could leave, however, other correctional officers
-22-
returned and subdued them. Mitchell suffered a sprained ankle.
Officer Brent Lewandowski testified that he was stationed in the
emergency room when an inmate who was being treated attacked a
doctor. After officers had subdued that inmate, Lewandowski heard
“a commotion” coming from the staging area, and he went in to find
Mitchell “defending blows” from two inmates in front of him.
Lewandowski testified that he saw defendant standing behind
Mitchell and striking him in the head.
Victim Impact Statements
Janet Mena’s sister Gabriela Mena gave a victim impact
statement, as did Mena’s father and her mother. The court also heard
impact statements by Kenneth Lozada, Juan Estrada’s brother.
Estrada’s wife, Kimberle, who was 5½ months pregnant at the time
of the murders, also submitted a statement.
Evidence in Mitigation
Defendant’s Childhood
Defendant called his cousin, Tanya Potts, as a witness in
mitigation. Potts testified that defendant lived with his mother, Lola,
and siblings in a house near Potts in Grand Rapids, Michigan in 1983.
In August 1983, Potts learned that defendant’s family had been
kidnapped by defendant’s stepfather, Victor “Tutti” Pasarro, and the
front door and front windows of the house had been broken in. Two
or three weeks later, Potts and her father took defendant and his
family to a women’s shelter. Later, after defendant and his family
moved back into their home in Grand Rapids, Pasarro moved in with
them, and Potts was not allowed to visit the home anymore.
Approximately 10 years later, defendant’s older sister Antoinette
came to Potts’ home and told Potts she had run away. She only stayed
a few hours, however. Three or four months later, the father of Potts’
children found defendant out walking in Grand Rapids and brought
him to Potts’ house. Defendant was dirty and tired, and he told Potts
he could not go back home with his mother and Pasarro anymore.
Defendant stayed with Potts and her family for two or three months,
but he then left, telling her that he felt guilty that he could not
contribute financially to the household.
-23-
Defendant’s younger brother, Genarro Rosas, also testified.
Genarro said that his first memory of Pasarro was when Genarro was
approximately three years old, when they lived in Chicago. According
to Genarro, his mother and Pasarro were fighting, and Genarro,
Antoinette, and defendant were standing outside in the snow. Genarro
recalled that he was in a diaper, and that Antoinette and defendant
were in pajamas, and that Pasarro’s sister had to come and take the
children to their grandparents’ house. Genarro also recalled an
occasion where Pasarro and Delores were fighting and Pasarro
threatened to kill Delores and Antoinette. It was after this fight that
defendant, Antoinette, Genarro, and Delores moved to Grand Rapids.
Genarro then recounted the August 1993 kidnapping incident that
Potts had described. According to Genarro, he and defendant had
awoken in the night when they heard someone trying to break in.
They heard a loud bang as the front door was broken in, and then they
looked into the living room and saw Pasarro “throwing” their mother
around. Genarro stated that Pasarro grabbed Delores by the hair and
neck and forced her out to the car, where the children followed.
Pasarro then instructed the children to get into the car, and he drove
the family to an apartment in Chicago. According to Genarro, people
in the apartment were “shooting cocaine or heroin, smoking crack or
whatever, smoking weed, getting their high on.” Genarro testified that
he and his family spent two days in the back room of the apartment
with no food or bathroom, until Pasarro’s father discovered them and
took the family to Delores’s parents, who returned them to Grand
Rapids.
Approximately eight months after they returned to Grand Rapids,
Delores allowed Pasarro to move in. According to Genarro, Pasarro
was abusive toward Delores “daily,” and defendant, who was seven
or eight, often tried to get between Pasarro and Delores. Genarro also
testified that he and defendant were forced to kneel on bottle caps for
15 or 20 minutes at a time as discipline, and that Pasarro hit them
with shoes and extension cords. Genarro also testified that Pasarro
and Delores were still together, and that Delores was covered in
bruises from years of abuse.
Genarro told the court that Pasarro did odd jobs for money, but
that he also sold drugs. According to Genarro, Pasarro took Delores
and her children with him to buy drugs from Pasarro’s father, and
-24-
Pasarro’s father also took the children with him to sell drugs to other
people. Genarro also stated that he saw defendant take marijuana
from “weed trays” in the house and smoke it as early as age 11.
According to Genarro, Pasarro’s family also gave the children alcohol
to drink at family parties, and that defendant started drinking when he
was approximately 12 years old. Genarro testified that defendant
never really lived at home again after he started drinking. Instead, he
would find cars to sleep in at night, and sometimes he would be found
and arrested.
On cross-examination, Genarro acknowledged that he and
Antoinette had both attended college and were working to support
themselves. He also explained that he had never spoken to defendant
about his crimes.
Mitigation Specialist
Defendant also presented the testimony of Mary DeSloover, an
attorney with the public defender’s office who prepared a social
history of defendant. DeSloover presented several reports and
evaluations performed by professionals defendant had seen. First, she
testified that she received a report from the Dakotah Project, a family
service treatment program to which defendant was referred in 1990
by his juvenile probation officer. The Dakotah report indicated that
defendant had several pending legal problems, which it attributed to
defendant’s drug abuse. The report also indicated that drugs,
including cocaine and marijuana, were being used in defendant’s
home by his mother’s boyfriend. According to the report, which was
created based on interviews with defendant and his mother,
defendant’s mother’s boyfriend was abusive toward him. The report
specifically indicated that slapping and hitting were used for
punishment, and that defendant had spent most of one summer locked
in his room for bad grades. The report also included some
information about defendant’s biological father. According to the
report, defendant’s mother claimed that she left defendant’s father
because he was “worshiping the devil.” Defendant himself indicated
that his father had discussed his father’s belief in “devil worship”
with defendant. Specifically, defendant’s father told defendant that he
had sold defendant’s soul to the devil.
-25-
DeSloover also presented a “psychological assessment” by
William J. Medick, a social worker, dated August 7, 1990. Medick
reported that defendant, then 14, had been living on his own for one
year. Medick found that defendant suffered from a depressive
disorder, and that he was apprehensive and suffering from low self-esteem.
Medick noted that defendant had engaged in “isolated
external acts of anti-social behavior,” but Medick believed those acts
were “secondary to depression.”
Next, DeSloover presented a report written by psychiatrist
Raymond Buck at the Psychiatric Center of Michigan Hospital and
dated August 13, 1990. Buck noted that defendant had suffered from
periodic feelings of strong depression over a period of two to three
years, including two suicide attempts in the four months before the
evaluation. Buck diagnosed defendant with dysthymic disorder and
recommended intensive inpatient treatment.
The next report was written by Dan Ziembroski, a social worker
with the Psychiatric Center of Michigan Hospital. Ziembroski
reported that defendant had been beaten by his mother’s boyfriend,
and that defendant was at risk for “developing real criminal status,”
for suicide, and for running away. Ziebroski recommended a
treatment plan of long-term residential treatment that would include
chemical dependence treatment and “dealing with issues of feelings
of rejection by his parents.”
Dr. Buck also prepared a discharge summary for the Psychiatric
Center of Michigan Hospital, dated October 3, 1990. Buck
summarized defendant’s history of suicide attempts and his family
history, noting that both defendant’s biological father and his
mother’s boyfriend had been physically abusive toward defendant’s
mother. The report also noted that defendant had been prescribed
psychotropic medication to control “his episodes of angry outbursts,”
during which defendant became “totally irrational” and “near
psychotic.”
DeSloover also reviewed a report dated May 1, 1990, and signed
by several employees of the Michigan Juvenile Court System. The
report indicated that defendant’s mother had failed to appear for two
counseling sessions, and she had not come to see or get defendant for
Easter. The report recommended that defendant live with shelter care
parents until long-term residential treatment could be arranged.
3To avoid confusion, we will refer to Delores Baez, Kathy Baez, and
Nancy Baez by their first names.
-26-
DeSloover also testified that she had interviewed defendant’s
mother, Delores Baez. Delores3 was reluctant to talk to DeSloover,
initially ignoring DeSloover’s attempts to reach her by mail and
through family members. Eventually, however, defendant’s brother,
Genarro Rosas, took DeSloover to meet with Delores, and he asked
Delores to cooperate. DeSloover testified that Delores’s boyfriend,
Victor Pasarro, was present in her meetings with Delores, and that
Delores appeared “nervous and afraid.” During one meeting,
however, Pasarro left the room for 5 to 10 minutes, and Delores told
DeSloover that she and Pasarro had a “very bad relationship,” and
Pasarro did not want Delores to be involved in defendant’s case.
DeSloover also presented a statement by Delores’s sister, Kathy
Baez. Kathy stated that Delores became pregnant with defendant’s
sister Antoinette at age 13 by defendant’s biological father, Teodoro
Rosas. Rosas was abusive towards Delores and her children. Kathy
recalled that Delores’s jaw had been broken by Rosas, and that
defendant had needed stitches in his head because Rosas had thrown
an ashtray at him. Kathy reported that when defendant and Antoinette
heard Rosas arrive to pick them up from visits with their
grandparents, they would shake, and Antoinette would sometimes
vomit.
When Rosas went to prison, Kathy wrote, Delores cut ties with
him, but she soon became involved with Victor Pasarro, whom Kathy
claimed was also abusive. Kathy recalled her father helping Delores
and the children move to Grand Rapids, and she recalled being told
that Pasarro had kidnapped the family. Finally, she noted, Delores
allowed Pasarro to move back in with her and the children, and
Pasarro was physically abusive and controlling.
Kathy later moved to Grand Rapids, and she learned that
defendant was running away from home and breaking into car
dealerships to stay in them. Kathy allowed defendant to stay with her,
and Delores and Pasarro would not allow defendant to have any of his
clothes or belongings at Kathy’s home. While defendant was staying
there, he was attending school, and on one occasion Kathy threatened
-27-
to return him to his mother’s house if his grades did not improve. The
next morning, defendant had run away, taking $2 for bus fare out of
nearly $3,000 Kathy kept above the refrigerator.
Kathy wrote that the reason she was not attending court in person
was that she feared gang retaliation against herself or other family
members.
DeSloover also presented a statement written by Nancy Baez,
another sister of Delores. Nancy wrote that when Delores became
pregnant at 12½ years old, Delores and Rosas ran away to Mexico to
live with Rosas’s father. Rosas beat Delores, however, and his father
bought Delores a bus ticket for her to return to Chicago. When she
arrived, she was sick and dehydrated and required hospitalization.
Soon after that, Antoinette was born prematurely.
Like Kathy, Nancy reported that Rosas was abusive toward
Delores and the children. Nancy stated that her brother, Kimbow,
often stood up to Rosas and threatened him to get him to stop abusing
Delores and the children, but when Kimbow died in 1979 the abuse
worsened.
When Rosas was incarcerated, Delores became involved with
Pasarro. According to Nancy, Pasarro was very controlling. She also
recounted the kidnapping incident. Nancy wrote that Pasarro
continued to beat Delores and the children after he moved in with
them in Grand Rapids. According to Nancy, Pasarro would lock the
children in their rooms for weeks at a time during the summer. Nancy
also stated that she was not appearing in court because she feared
retaliation.
On cross-examination, DeSloover repeated her earlier testimony
that Delores and Pasarro had been seeing each other for 13 or 14
years, and Genarro was 25 years old at the time of the hearing. She
would not agree, however, that it was “impossible” for Genarro to
remember standing in the snow with Pasarro at age three. DeSloover
also testified that Delores did not have black eyes or bruises when
DeSloover saw her, and that nobody except Genarro had reported that
Pasarro made defendant kneel on bottlecaps. She also acknowledged
that defendant’s mother had appeared in court to ask for a reduction
of defendant’s bond, and she had assured the court that she could
control defendant. The State also showed DeSloover a report written
-28-
by defendant’s juvenile probation officer, who wrote that defendant’s
mother was “truly interested in the well-being of her son” and had
“gone to extremes” to assist the officer.
The State then reviewed several of defendant’s juvenile records
with DeSloover, and she acknowledged that defendant had been
disruptive and threatening on multiple occasions while in juvenile
custody. One of defendant’s evaluators had also written that there was
an element of “cunning” to defendant’s presentation, although he
appeared to be cooperating. Defendant also told that evaluator that he
found breaking and entering “fun” and had been excited during the
crimes. In another of the reports, defendant reported that he fought
with other kids at school for “fun.”
Testimony of Dr. Heinrich
Dr. Larry Heinrich, a clinical psychologist, testified in mitigation.
Heinrich reviewed the police investigative reports of the murders of
Estrada and Mena, defendant’s January 30, 2000, statement to police,
defendant’s juvenile and criminal arrest records, defendant’s
statement regarding the stabbing of Jon-Pierre Blackamore, and a
social history report prepared by defendant’s mitigation expert.
Heinrich also spent at least six hours interviewing and testing
defendant personally, and he administered two screening tests. The
first measured defendant’s level of literacy, which Heinrich
concluded was at the high school level, indicating “at least average
intelligence.” Heinrich also administered the Millon Clinical
Multiaxial Inventory III, which he described as a standardized
psychological measure “to assist the clinical opinion.”
Heinrich opined that defendant suffers from “a severe personality
disorder which is called not otherwise specified because it has mixed
features of the various other personality disorders.” Specifically,
Heinrich found features that were “avoidant, antisocial, sadistic, and
negativistic.” He explained that a defining characteristic of a
personality disorder is that it is pervasive, rigid, and inflexible; he
thus opined that defendant would have been influenced by the
personality disorder at the time of the murders. Heinrich also agreed
4The Diagnostic and Statistical Manual IV (DSM-IV-TR) separates
patient assessment into five “axes.” Broadly, axis I includes clinical
disorders other than those covered by axis II, which includes personality
disorders and mental retardation. Axes III, IV, and V cover general medical
conditions, psychosocial and environmental problems, and global
assessment of functioning, respectively. American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, at 27-29 (4th ed.
2000).
-29-
that, as an axis II diagnosis,4 the personality disorder constituted an
“extreme mental disorder.”
Defense counsel asked Heinrich whether anything in the reports
of Forensic Clinical Services psychiatrists Drs. Rabin and Henry, and
FCS psychologist Dr. Coleman, who had all evaluated defendant
previously, supported his diagnosis. Heinrich noted that each of them
had also diagnosed defendant with a personality disorder “not
otherwise specified,” but Henry and Coleman included an additional
diagnosis of antisocial personality disorder. Heinrich also noted that
other psychiatrists who had evaluated defendant had found features
of a variety of personality disorders, including borderline personality,
schizotypal personality, avoidant personality, and antisocial
personality. According to Heinrich, these various diagnoses are all
consistent with his evaluation of “not otherwise specified.”
Referring specifically to Dr. Henry’s report, Heinrich opined that
a diagnosis of personality disorder not otherwise specified should not
be made along with another personality disorder. According to
Heinrich, “if a person does not fit” into a specific personality
disorder,
“the last personality disorder is called not otherwise specified,
meaning that the individual has traits and features of all [or]
some of the eight other personality disorders; so, therefore, if
you have this personality disorder not otherwise specified you
don’t have another personality disorder. You can’t have two
of those because the [not otherwise specified] is to categorize
features and traits of–of several personality disorders, and
that’s precisely what Mr. Baez has is a ‘not otherwise
specified’ or ‘mixed.’ In other words, he has traits, features of
several different personality disorders but nonetheless a
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severe personality disorder.”
Heinrich noted that Dr. Coleman had diagnosed both antisocial
personality disorder and personality disorder not otherwise specified.
When asked about the use of both diagnoses together, Heinrich
answered, “You can’t do it. I mean, if you have antisocial then you
don’t put another–a personality disorder is one personality disorder
so you have to make up your mind whether you have one of the first
eight or the last one [not otherwise specified]. And they’re putting in
the last one which includes features and elements of all the ones prior
to that.”
Heinrich also opined that defendant did not suffer from antisocial
personality disorder. According to Heinrich, while a person suffering
from antisocial personality disorder displays behavior that is
“calculated,” “cunning,” and “premeditated,” defendant’s behavior in
this case was “impulsive,” “confused,” and “phobic.” In particular, he
opined that defendant had behaved in a “bizarre” manner with respect
to the swords he used in the crime, and that dismemberment was not
consistent with antisocial personality disorder. He also opined that
defendant was not a “real sociopath.”
Heinrich noted that defendant was taking several psychotropic
medications at the time of the hearing. Heinrich explained that Dr.
Kelly, who had evaluated defendant’s fitness to plead and be
sentenced, believed the medications were necessary to keep defendant
fit.
At the end of Heinrich’s direct testimony, defense counsel asked
Heinrich, “Doctor, in your opinion on the date of the death of Mr.
Estrada and Miss Mena, was Teodoro Baez suffering from an extreme
mental or emotional disturbance?” Heinrich answered, “Yes.”
On cross-examination, Heinrich acknowledged that he had used
the term “mixed personality disorder” in his report rather than “not
otherwise specified,” but he asserted that the terms referred to the
same thing. The State then asked about antisocial behavior disorder,
and Heinrich maintained that defendant did not suffer from that
disorder. He agreed that the DSM lists four criteria for a diagnosis of
antisocial personality disorder, and the State asked about each
criterion individually. The first criterion is that the patient display a
“pervasive pattern of disregard for and violation of the rights of
-31-
others,” indicated by at least three of the following: (1) failure to
conform to social norms with respect to lawful behaviors, as indicated
by repeatedly performing acts that are grounds for arrest; (2)
deceitfulness, as indicated by repeatedly lying, use of aliases, or
conning others for personal property or pleasure; (3) impulsivity or
failure to plan ahead; (4) irritability and aggression as indicated by
repeated physical fights or assaults; (5) reckless disregard for the
safety of others; (6) consistent irresponsibility as indicated by
repeated failure to sustain consistent work behavior or honor financial
obligations; and (7) lack of remorse as indicated by being indifferent
to or rationalizing having hurt, mistreated, or stolen from another.
Heinrich acknowledged that defendant failed to conform to social
norms of lawful behavior and displayed impulsivity, irritability and
aggression, irresponsibility, and a lack of remorse. He denied that
defendant displayed evidence of deceitfulness, but he acknowledged
that defendant had lied to other psychiatrists since his arrest, and that
defendant admitted that his behavior with respect to the swords was
an attempt to hide evidence he had used in the crime.
The second diagnostic criterion is that the patient be at least 18
years old. The third criterion is evidence of conduct disorder, a
diagnosis given only to children, with onset before age 15. The fourth
criterion requires that the antisocial behavior not occur exclusively
during schizophrenic or manic episodes. Heinrich acknowledged that
defendant met each of these requirements. Ultimately, Heinrich
agreed that defendant displayed “each and every diagnostic criteria”
for antisocial personality disorder listed in the DSM-IV-TR.
Testimony of Dr. Coleman
Sharon Coleman, a clinical psychologist with Forensic Clinical
Services, also testified for defendant. Coleman interviewed defendant
twice, and prior to those interviews she reviewed the police reports of
the murders, defendant’s videotaped statement, and defendant’s
juvenile clinical records. She also reviewed defendant’s previous
evaluations performed by Forensic Clinical Services’ Drs. Rabin,
Henry, and Kelly.
Coleman testified that, on axis I, she had diagnosed defendant
with polysubstance dependence and psychotic disorder not otherwise
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specified, with the latter as a “provisional” diagnosis. With respect to
the polysubstance dependence, Coleman opined that the origin of
defendant’s dependence was remarkable because it began with
marijuana use with his father around age six. Coleman explained that
the diagnosis of psychotic disorder not otherwise specified was based
on defendant’s report of “fleeting” auditory and visual hallucinations
of one of his victims.
On axis II, she diagnosed defendant with “antisocial personality
disorder and also with personality disorder not otherwise specified
with borderline features.” The court interjected to confirm that
Coleman’s diagnosis included two disorders, and that this was
permissible under axis II. Coleman confirmed that it was. She then
explained that a personality disorder usually first appears in childhood
or adolescence and is “long standing” and “present in a variety of
contexts.” She opined that defendant would therefore have suffered
from the effects of his personality disorders at the time of the
murders. She also opined that defendant’s symptoms were “severe
enough to constitute emotional or mental disturbance.”
With respect to antisocial personality disorder, Coleman testified
that defendant met six of the seven diagnostic criteria: “failure to
conform to social norms with respect to lawful behaviors,
deceitfulness, impulsivity or failure to plan ahead, irritability and
aggressiveness, reckless disregard for the safety of self and others,
and lack of remorse.” Coleman then explained that personality
disorder not otherwise specified is a “general category for a
personality disorder that does not meet one of the ten specific
personality disorders,” and that she had found defendant to exhibit
some symptoms of borderline personality disorder, although he did
not meet the full criteria for that disorder. In particular, Coleman
opined that defendant exhibited “transient, stress-related paranoia,
inappropriate or intense anger, or difficulty controlling anger,
recurrent suicidal behavior or gestures,” and “general impulsive
behaviors that are reckless in nature.”
Coleman testified that defendant’s clinical and legal history
supported her diagnoses. She noted that other evaluators had also
diagnosed defendant with antisocial personality disorder and
personality disorder not otherwise specified, although their diagnoses
were not based on borderline features. She also stated that her review
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of defendant’s juvenile records showed at least five reports of abuse
by his mother’s boyfriend, and that defendant had twice elected to
remain in the custody of the state rather than return home.
Coleman also noted that the symptoms of antisocial behavior
disorder tend to improve with age, such that it was “definitely
possible” that the inappropriate behavior associated with that disorder
would lessen with age. She testified that defendant had expressed
remorse about the murder of Janet Mena, although he had not
expressed regret about the death of Juan Estrada.
On cross-examination, Coleman acknowledged that she could not
say conclusively that defendant was suffering from a mental or
emotional disturbance in 1999. When asked how her diagnosis
differed from Heinrich’s diagnosis of a mixed personality disorder,
Coleman answered,
“My diagnosis is a general diagnosis of personality
disorder with related borderline features, although Mr. Baez
according to my diagnosis does not meet the whole criteria for
borderline personality disorder.
* * *
Mixed personality disorder is similar to personality
disorder NOS, however, it could include borderline features,
antisocial features, paranoid features. It could include features
of multiple or different personality disorders. [Heinrich] does
not specify necessarily which personality disorders
that–which features.”
The State then inquired about Coleman’s diagnoses as compared
to those of Dr. Henry, a State psychologist who had evaluated
defendant’s sanity at the time of the murders. Coleman testified that
her diagnoses on axis II were the same as Henry’s, including the
diagnosis of personality disorder not otherwise specified with
symptoms of borderline personality disorder. She also agreed that her
axis I diagnosis of polysubstance dependence was the same as
Henry’s, although her axis I diagnosis also included the provisional
diagnosis of psychotic disorder not otherwise specified. She
explained that her diagnosis was “provisional” because there were
“symptoms present of a possible psychotic disorder but not enough
information really there to make a firm diagnosis.” Coleman also
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agreed that the only evidence of hallucinations came from defendant’s
own reports to the Forensic Clinical Services evaluators after
defendant was charged in this case; none of defendant’s other clinical
history indicated reports of hallucinations. Further, she agreed,
defendant’s affect and behavior in his sessions with the Forensic
Clinical Services evaluators, including herself, were “inconsistent
with somebody who is overtly psychotic,” although she indicated that
a person with a psychotic disorder could be properly medicated and
in remission such that “it is still possible to observe a person who can
be alert and cooperative and not experiencing hallucinations during
an interview and still have a diagnosis of a psychotic disorder.”
The State then asked Coleman about malingering, which Coleman
testified is “exaggerating or completely feigning psychiatric
symptoms for personal gain.” She stated that the DSM-IV-TR
recommends that malingering be “strongly suspected” if any
combination of four criteria were present: (1) the person is referred by
an attorney to the clinician for examination; (2) marked discrepancy
between the person’s claimed stress or disability and the objective
findings; (3) lack of cooperation during the diagnostic evaluation and
noncompliance with prescribed treatment regimen; or (4) antisocial
personality disorder. Coleman agreed that defendant suffered from
antisocial personality disorder and that he had been referred to her by
an attorney. However, she testified that she did not believe
defendant’s reports of hallucinations represented a “marked
discrepancy” between the reports and his previous lack of psychotic
symptoms; Coleman opined that defendant had first reported
hallucinations while incarcerated because that is when they first
manifested.
On redirect, Coleman clarified that defendant was taking
prescribed antipsychotic medication when she interviewed him, and
that she therefore would not expect him to display psychotic
symptoms.
Blackamore Incident
The parties stipulated that defendant had been placed in protective
custody in the Cook County jail after the Department of Corrections
found credible evidence of gang threats against defendant’s life.
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Defendant also called Ruben Granville, who had been
incarcerated with defendant and Blackamore in the Cook County jail.
Granville testified that prior to the stabbing, Blackamore had
repeatedly told the other inmates that defendant had a “contract on
him” under which the Satan Disciples gang was willing to pay
someone to kill defendant. Granville also testified that he noticed
self-inflicted scratches on defendant’s arms and hand. On cross-examination,
Granville acknowledged that he was present in the
recreation area when defendant stabbed Blackamore. He stated that
although he saw the stabbing, he could not clearly see where
defendant stabbed Blackamore. Similarly, he could not see the
weapon defendant was using, although he did see the shank on the
ground after the incident.
During its rebuttal, the State presented the stipulated testimony of
UnBo Chung, an assistant State’s Attorney who interviewed
Granville after Blackamore was stabbed. The parties stipulated that,
if called, Chung would testify that Granville told him he saw
defendant stab Blackamore in the neck with a homemade knife.
Defendant’s Statement
After closing arguments, defendant addressed the court directly:
“Well, I–um–I can’t say nothing to bring back the family
but–the victims to their family. I can’t say nothing to take
them home. If I get sentenced to death it’s just like natural life
because I’m going to die both ways. It’s–it’s a decision I live
with everyday. I do that’s [sic] a crime and how it affects
people. But, once again, I did what I felt I had to do and that’s
got to be the only thing that keeps me sane. So I’ll just rely on
your judgment and your compassion.”
Court’s Judgment and Findings
On March 9, 2004, the court sentenced defendant to death. In an
oral ruling, the court first reviewed the evidence it found in
mitigation. It noted that defendant’s father had been abusive toward
defendant and his mother and had introduced defendant to drugs
sometime between the ages of four and six. It also noted that
defendant had concerns at a very young age that his father had sold
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defendant’s soul to the devil, which the court said introduced “some
bizarre feelings or thoughts on the defendant’s part.” However, the
court also pointed out that defendant’s father was out of his life by
age seven.
The court believed that defendant had been physically disciplined
and abused by Victor Pasarro. The court also believed that defendant
and his mother had been kidnapped by Pasarro and kept for several
days until Pasarro’s father discovered them. With respect to Genarro
Rosas’s other testimony, the court opined, “this abuse, I believe, was
exaggerated by Mr. Baez’s brother Genarro.” Specifically, the court
noted that Genarro
“testified to me that Victor Pasarro never came to the
defendant when he was a ward of the state of Michigan and
did not participate at all in counseling with him. And he
described brutal beatings of the defendant by Victor Pasarro.”
The court cited three reports of family therapy sessions and one report
of a residential treatment program in which defendant’s mother and
Pasarro both participated. It also noted that defendant’s own reports
to staff were “open” and discussed being slapped and locked in his
room by Pasarro and defendant’s mother, but “[e]ven though he
discuss[ed] the abuse on several occasions, he never discuss[ed]
anything approaching what Genarro Rosas said occurred to the
defendant.”
The court also noted that, although several witnesses gave the
impression that defendant’s mother was not present, “the records
indicated otherwise.” The court referred specifically to reports
indicating that defendant’s mother was “truly interested in trying to
support” intervention into defendant’s life and that she had tried to
get defendant into drug treatment programs.
The court found that defendant did have an antisocial personality
disorder and a personality disorder not otherwise specified, and that
he had those disorders at the time of the offense. However, the court
also stated, “I do not believe that they were so extreme. I do not
believe that they were an extreme mental or emotional disturbance.”
In aggravation, the court noted defendant’s long juvenile criminal
history. With respect to defendant’s several arrests for breaking into
automotive shops and driving away vehicles, the court stated, “I
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certainly don’t believe he was breaking into these places to sleep in
a car.” The court also stated that the state of Michigan “did everything
they could to try to turn Mr. Baez’s conduct around,” but defendant’s
criminal acts continued. The court then noted that the record of
defendant’s juvenile hearings “almost always” indicated that his
mother was present. The court also discussed defendant’s adult
criminal history, including felony theft, armed robbery, and unlawful
use of weapons.
With respect to defendant’s psychosocial history, the court found
that it showed defendant was “intelligent and articulate but [could]
manipulate to get his own way.” The court further found that
defendant was not psychotic, relying on defendant’s lack of psychotic
symptoms prior to his arrest.
The court next noted that defendant had “committed major
violations while in jail.” The court specifically discussed the stabbing
of inmate Blackamore, referring to Heinrich’s testimony that
defendant had told him that he had stabbed Blackamore in the neck
“not because Mr. Blackamore had physically done anything to him
but the defendant felt threatened because Mr. Blackamore was
spreading a rumor that there was a price on Mr. Baez’s head for the
murders committed in this case.” The court then recounted
defendant’s “unprovoked” striking of Officer Mitchell. It further
noted that defendant “has of course a significant history of
criminality.”
The court also noted that defendant lacked remorse: “All through
the records that I reviewed, there are indications that Mr. Baez does
not have remorse.”
With respect to the facts of the crimes in this case, the court
stated, “I have been a judge for almost 17 years and it is the most
ghastly set of facts I have had to deal with. These young people had
an agonizing and painful death and they did nothing to deserve it.”
Finally, the court turned to the sentence:
“The death penalty is to be imposed only on the most
vicious of criminals, that it should not be lightly imposed.
And in almost 17 years, I have never imposed the death
penalty when it was my decision.
And I asked myself in this case are there any mitigating
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factors sufficient to preclude the imposition of the death
penalty and there was a resounding no. There are no
mitigating factors sufficient to preclude the imposition of the
death penalty.
And so, Mr. Baez, for the murder of these two young
people, the sentence of death is pronounced on you today.”
Postsentencing Motions
Defendant filed a timely motion for a new sentencing hearing and
a timely motion to reduce sentence. Defendant’s motions included
two arguments relevant to this appeal. First, defendant’s motion for
new sentencing hearing argued that the court erred in applying the
“no mitigating factors sufficient to preclude the imposition of death”
standard when the legislature had changed the standard effective
November 19, 2003, to “whether ‘death is the appropriate sentence.’ ”
At the hearing on defendant’s motions, the court acknowledged that
the standard had been changed. The court explained:
“When I wrote my notes on the yellow sheet of paper, I
had both standards because Mr. Baez I thought had the right
to elect both, and I certainly thought I said that death was the
appropriate sentence. Those words I do not see in the
transcript, even though I read it quickly. I certainly didn’t see
them. But it is clear that under either standard, death is the
appropriate sentence.
There were mitigating factors, but there were no
mitigating factors sufficient to preclude the imposition of
death. And, therefore, death in this Court’s opinion was the
appropriate sentence in the case.”
Later, the court added:
“I wouldn’t have used the wrong standard, but I’ve indicated
that I had the benefit of both standards, and I think that they
go hand in hand. If there were mitigating factors sufficient to
preclude the imposition of death, then of course death would
not be the appropriate sentence. Because there are no
mitigating factors sufficient to preclude the imposition of
death, then death is in fact without a doubt in my mind the
-39-
appropriate sentence.”
Defendant’s motion to reduce sentence also argued that the court
erred in failing to find that defendant suffered from an extreme
mental or emotional disturbance. Similarly, the motion to reduce
sentence argued that the court failed to give proper weight to Dr.
Heinrich’s testimony. On that point, the court stated, “Doctor
Heinrich’s testimony was not credible. He was just not a credible
witness.” Specifically, the court noted Heinrich’s assertion that
multiple diagnoses on axis II were impermissible, an assertion
contradicted in court by Dr. Coleman and in the report by Dr. Henry.
The court also noted that although Heinrich had testified that
defendant did not have antisocial personality disorder, he had agreed
on cross-examination that defendant met “every single one” of the
diagnostic criteria. The court denied both of defendant’s motions in
their entirety.
Remand
On August 29, 2005, defendant filed a motion in this court for
remand to the circuit court to allow him to file a late motion to
withdraw his guilty plea. This court allowed the motion, and the case
was remanded.
Defendant’s Motions on Remand
On remand, defendant argued that the removal of Attorney
Granich from the case violated defendant’s right to counsel of choice
under the sixth amendment and the parallel state right, as well as the
due process clause of the fourteenth amendment. Defendant’s motion
stated that he was “discouraged by the loss of his chosen champion
to represent him” and therefore “devised ways to bring about his own
demise” by pleading guilty. Defendant also argued that he had been
denied his right to represent himself after Granich was removed from
the case. In a supporting affidavit, defendant stated, “when I inquired
about pleading guilty on the day my lawyer, Attorney Jeffrey Granich,
was removed from my case, I did so out of the idea that without my
counsel of choice I could not receive proper, just, and unbiased
representation,” and “while I had considered pleading guilty to some
offense in this case prior to Mr. Granich’s removal as my lawyer; at
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the time of his removal as my lawyer it was my understanding that
were going to take the case to trial.” Defendant also averred, “I felt
despondent at Attorney Granich’s removal from the case and believed
that I had no hope in proceeding without him as my lawyer, which is
when I expressed my desire to plead guilty.”
On January 16, 2008, a hearing was held in the circuit court on
the motion to withdraw guilty plea. Defense counsel indicated that he
wished to call a number of witnesses to which the State objected on
relevance grounds, and the court allowed him to make an offer of
proof. Counsel indicated that he intended to call James Anderson,
administrator of the Cook County portion of the Capital Litigation
Trust Fund. Anderson would provide a spreadsheet of disbursements
from the Capital Litigation Trust Fund from January 1, 2000, to the
date of the hearing in 2008. In particular, the defense would seek to
admit the portion of the spreadsheet showing disbursements in 2000
and 2001, before the Capital Litigation Trial Bar had been created.
According to counsel, the spreadsheet showed “substantial”
disbursements to appointed counsel, as well as investigators and
experts. Counsel would highlight two cases in which payments were
made to Jeffrey Granich, and additional cases in which payments
were made to Barry Spector, Robert Loeb, and Debra Seaton.
Counsel also made an offer of proof with respect to the testimony
of Robert Loeb, whom he intended to call for defendant. Loeb would
testify that he and Debra Seaton were appointed and paid out of the
Capital Litigation Trust Fund in 2000 to represent Andre Crawford,
though neither of them was a member of the not-yet-created Capital
Litigation Trial Bar. He would also testify that neither he nor Seaton
had been retained by Crawford prior to appointment.
Finally, counsel made an offer of proof of the related testimony
he would elicit from Jeffrey Granich if permitted. Granich would
testify that he was appointed in two capital cases in 2000 and 2001,
although he was not a member of the Capital Litigation Trial Bar at
the time, nor had he become a member since. He would also testify
that he was not appointed “on the eve of trial,” although one of the
cases was “fairly far along” at the time of his appointment. In
addition, Granich would testify that one of the cases took at least a
year and a half to be tried.
The State objected, arguing that the proffered testimony was
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irrelevant, because its theory was that the court had discretion to
appoint and remove Granich. The court responded to the arguments
by stating:
“Counsel, you have made your offer of proof. Your offer
of proof will be in the record. You can take your spreadsheets
and you and put them in the record. The Supreme Court will
be able to see them if you lose this motion to withdraw.
I have read the entire conversations that I’ve had during
the course of this case with Mr. Baez. I don’t think it’s
relevant, but that will be for the Supreme Court to see if the
case gets back to them. So you can certainly–as I just said,
you’ve made your offer of proof and you can mark your
spreadsheets as [an] exhibit.”
The court then referred to the entries on the spreadsheet showing that
it had personally made appointments of private counsel, saying:
“[THE COURT:] So, yes, I knew the fund was there, I
used it and I helped to write–I was on the committee that was
initially assigned to write the Capital Trial Litigation Rights,
so I know that that requirement didn’t come into existence
until 2002. So you can certainly put those documents in the
record, I will take the offer of proof, and as I said, once we
resolve the motion to dismiss [sic], if you lose the Supreme
Court will have the evidence.
It’s not contested by the State, is it, that that’s what he
would say?
[Assistant State’s Attorney] MR. RICHARDS: No.
[Assistant State’s Attorney] MR. MURPHY: No.
THE COURT: All right. Then the State’s not contesting
it, it’s in.”
The defense then rested. The State called Granich, although it
indicated for the record that it was doing so at the request of the court.
Granich testified that he was contacted by defendant’s girlfriend and
paid $6,500 to represent defendant, which did not represent his total
fee. Granich estimated that he would generally charge $20,000 to
$50,000 to defend a client charged with a double murder, and that up
to the date of his motion to be appointed as counsel, he had billed
$3,000. According to the motion, that $3,000 represented 12 hours
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reviewing the file, 3 hours on court appearances, and 5 hours on client
conferences. Granich testified that he spent additional time on the
case after the motion was filed, but he would not speculate as to how
much time. Granich also agreed that when he was removed from the
case it was “not even close” to being ready for trial.
With respect to his vacation, Granich told the court that he left for
Israel in late May or early June 2001 and returned to Illinois in
October 2001. After “three or four months,” Granich again left for
Israel, where he stayed another three or four months before returning
to Illinois. While he was gone, attorney Loren Blumenfeld managed
his office “to take care of the day-to-day operations.” John Theis,
whom Granich had sought to have appointed in this case, also took
“one or two” of Granich’s cases. According to Granich, “Any case
that was pending when I left in the early Summer of 2001 an
additional attorney would have filed an appearance and we shared
responsibility.” When asked about his plans in this case, Granich
responded, “If I would have maintained responsibility on the case I
would have communicated with my office and the defendant through
letter, by coming back to Chicago, speaking to my clients when
necessary, preparing my clients when necessary to testify, and doing
anything ordered by this court.” Granich explained that he had
anticipated communicating with defendant by phone and letter while
in Israel, and the court interjected, “You didn’t tell me you were
going to communicate; you told me you were going to be gone and
Mr. Theis was going to carry on the case while you were out of town
and you’d return to try that case. That’s what you said to me.”
Granich replied, “And Judge, that’s what I mean, that I would
continue my responsibility and do whatever I needed to do to try this
case.” Later, Granich stated, “I didn’t know how long I was going to
be gone for so I hoped Mr. Theis would come on the case, try it with
me, cover any court date that I could not make and work on the case
together. My intention if my appointment would have continued
would have been to try the case with Mr. Theis.” He agreed that he
had told the court that he anticipated that Theis would “carry on the
case” while Granich was out of town and that Granich would “return
to try the case,” but he asserted, “To me trying a case means to litigate
any motion that needs to be litigated.”
Granich acknowledged that he did not advise the court in his
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motion for appointment that he planned to leave the country. He
further acknowledged that, after he informed the court of his plans,
the court asked him to submit in writing the dates he intended to be
out of the country and he did not do so. Granich maintained that he
did not know how long he was going to be out of the country at that
time, although he told the court “months.” He explained, “I kind of
just really wanted to see what was going to happen when I got there.
It was kind of a situation where I wanted to keep one foot here and I
wanted to put one foot out there without necessarily losing what I had
developed at that point.” Granich acknowledged that he was thinking
about living in Israel. He did not recall discussing his plans with
attorney Stuart Smith.
When the State’s questioning was complete, the court asked
Granich if he had tried any death penalty cases prior to his April 2001
motion for appointment; Granich answered that he had not. Granich
also stated that he believed Theis had tried federal death penalty
cases, which was part of the reason Granich sought Theis’s assistance
in this case.
On cross-examination, defense counsel asked several questions
about Granich’s April 26, 2001, appointment. The court interrupted
the questioning, saying, “There is no issue that he was appointed. It
seems to me that you’re wasting my time. He knows he was
appointed. I said he was appointed, I said he was appointed, and a few
days or less than a month later I struck the appointment. It’s not
whether he was appointed or not. Clearly he was appointed.”
Defense counsel also asked Granich if he had contacted a
mitigation specialist, and Granich said that he had. Granich agreed
that a mitigation specialist “can take at least months and maybe
years” to develop a mitigation case. Counsel then asked, “So, in fact,
when you had gone that four months, wasn’t it your plan that if a
mitigation specialist was appointed it was going to continue?”
Granich answered, “Yes.” When counsel asked “Would not a
mitigation specialist be working on gathering records and doing the
leg work on the case?” the State objected, and the court said, “That
objection is sustained as to what would have happened if he had been
gone four months. No one had been appointed, no one had been hired.
He said he had talked to somebody.”
Finally, Granich agreed that he was “ready, willing, and able” to
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continue representing defendant if his appointment had been
continued.
The State also called Stuart Smith at the court’s request. Smith
testified that he did not have an “independent recollection” of any of
the proceedings in this case on May 22, 2001. Similarly, Smith
claimed he could not recall having a conversation with Granich about
his travel plans or about anything else that day. He pointed out that
there was another Mr. Smith in the public defender’s office, but he
agreed with the court that the transcript indicated that “Stuart Smith”
was present.
On cross-examination, Smith told the court that prior to his
appearance on May 22, 2001, defendant was “very upset and was
actually hanging from the top bars in the lock-up in the back based on
his being very upset.” After questioning from the court, Smith
clarified that defendant was hanging from his arms and “climbing the
walls.”
Court’s Rulings
On February 19, 2008, the court denied defendant’s motions in an
oral ruling. With respect to defendant’s claim that he was denied his
request to represent himself, the court said that it was “unsupported
by the record” and “a waste of [the court’s] valuable time.” The court
reviewed the transcripts, noting that defendant had agreed to meet
with Buchholz and discuss the case, and at his next appearance
defendant had “without any prompting” stated, “And I agree to have
counsel represent me.” Thus, the court found, “He never
unequivocally decided to represent himself and, in fact, agreed to
continue with the public defender without me asking him.”
The court then turned to defendant’s argument that his guilty plea
was not knowing and voluntary. It again reviewed the relevant dates
and appearances, summarized above. It noted that on April 26, 2001,
it had not read the motion for appointment of counsel, but it
appointed Granich knowing that it “had discretion to appoint
counsel.” However, the court asserted that when it appointed Granich
it did not know “that Mr. Granich had not been retained by Mr. Baez
to represent him.” The court also noted that it was only after he was
appointed that Granich told the court he was requesting a second
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person. When Granich later told the court he would be leaving the
country, the court stated, it became clear that Granich “was actually
asking for substitute counsel to take over in his place.”
The court also discussed Granich’s statement at the April 26
appearance that Theis would “take over the litigation of this case until
I return.” The court found that Granich’s testimony on remand that he
intended to return and litigate motions “lacked credibility.” Referring
to Granich’s statements on May 9, 2001, that he “anticipated Mr.
Theis would carry on the case while [Granich] was out of town,” the
court further found that at the remand hearing Granich “was not
truthful to the court when he said that he would return to litigate any
motions that were filed in this case pretrial.”
The court then discussed the May 22, 2001, appearance at which
it struck Granich’s appointment:
“On May 22, 2001, I said I did not think that I could legally
appoint two counsel because there really was no basis for
appointing private counsel. When I said legally, I didn’t mean
pursuant to the Capital Crimes Litigation Act.
Personally, I have always appointed the public defender’s
office when people cannot retain private counsel. I would not
appoint private counsel unless, for instance, there was a
conflict of interest with the public defender’s office or if a
defendant had actually retained private counsel.
When I say retain them, I mean pay them a substantial
portion of their fee and that the case was close to trial and that
it would delay the disposition of my case if private counsel
was not appointed.
Mr. Granich told me sometime during this period of April
26th to May 22nd that he had received a nominal amount of
funds. In reviewing the motion for appointment, he said he
had received a little over $6,000. No attorney is retained in a
double murder for $6,000. That is a possession of a stolen
vehicle fee, a possession of a controlled substance fee, maybe
a residential burglary fee. Mr. Granich was not retained. Mr.
Granich knows he was not retained.
Frankly, I believe that Counsel had taken a case that he
knew he would not be compensated for and was requesting
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this Court to appoint he and another attorney who would be
paid by the County rather than by the defendant.”
The court also noted that Granich “was not only asking for two
attorneys to be appointed, he was asking for substitute counsel to take
his place while he decided what his future course was going to be in
his own practice.” The court then stated:
“When I made my record, I did not want to embarrass Mr.
Granich. When Mr. Smith said that Mr. Granich said he
would be gone for at least six months, I did say I told Mr.
Granich to put it in writing how long he was going to be gone
and he didn’t do it. I did say at the time it wasn’t a major issue
in the case, and it was not a major issue. It was not
dispositive, but, of course, it was an issue.
He was, in effect, asking for substitute counsel for Mr.
Theis for him. He was going to be gone, leaving Mr. Theis to
resolve all pretrial issues alone. He didn’t know when or if he
was coming back. He was unsure if he would actually move
to Israel. His absence, of course, would delay the proper
progress of this case.”
With respect to defendant’s demeanor after Granich was
dismissed, the court said, “Mr. Baez was not upset or concerned at all
about me striking my appointment of Mr. Granich once I had found
out that he had not been retained in this case and that he had basically
deceived the Court and tried to get the court to hire two private
counsels to represent Mr. Baez.” The court also addressed Smith’s
testimony that defendant was agitated by the changes in his counsel:
“When Stuart Smith testified in my courtroom regarding Mr. Baez
climbing the walls, I believe that was an absolute lie by the attorney.”
The court called Smith’s testimony “an outright and deliberate lie to
this Court,” noting,
“My sheriffs monitor my lockup. I can hear the lockup. When
there is any noise in my lockup, I go back and see what is
going on.
Mr. Baez has comported himself always as a gentleman in
my courtroom. He has always demonstrated respect for me, as
I have for him. This incident did not occur. Mr. Stuart Smith
is a liar.
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Mr. Baez on that date, on prior dates and subsequent to
that date[,] comported himself always as a gentleman. My
sheriffs never had any problem with him. He engaged me
personally on almost every court date with any concern that
he had.”
The court then addressed defendant’s request to plead guilty. It
noted that it had responded to defendant’s request by pointing out that
defendant had made the request before, and that defendant had said
that he had been thinking about pleading guilty “since the incident
occurred.” The court further stated, “Mr. Baez had said before he
wanted to plead guilty in this courtroom, whether it was coming in or
going out. Whether the court reporter caught it or not, Mr. Baez had
said that to me.” The court then noted again that defendant agreed to
wait and talk to his lawyers, and that defendant “was not upset” when
he left. The court further noted that defendant had “always
communicated any concerns” that he had to the court.
The court also pointed out that, prior to his plea, defendant had
been evaluated by Dr. Coleman, who indicated that defendant was
able to “intelligently discuss his decision to enter a plea of guilty.”
Coleman reported that defendant felt the plea would give him
“closure,” and that he intended to cooperate with and assist his
attorneys.
The court then addressed the affidavit defendant had submitted in
support of his motion to withdraw the guilty plea. It noted that
defendant had averred that he pleaded guilty “out of the idea” that he
could not receive “proper, just and unbiased representation” without
his counsel of choice. The court responded, “That lacks credibility.
*** I believe Mr. Baez did not testify in my case because he didn’t
want to get on this bench and lie in front of me because we have
always been honest and truthful with each other. I believe his
affidavit is a lie. There is no support for that statement in the record
or anything that happened in this courtroom.” As to defendant’s
representation that he feared he would not receive proper
representation from the public defender’s officer, the court found,
“That is a lie.” With respect to defendant’s assertion that at the time
of Granich’s removal defendant anticipated going to trial, the court
stated, “That is an incredible statement. As I said, given the weight of
evidence against this defendant, the horrendous nature of this case,
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Mr. Baez’s only hope was to plead guilty to the case.” Similarly, the
court called the affidavit’s assertion that defendant was “despondent”
at Granich’s removal “a lie.” The court noted that defendant was
“pleasant and happy when he left this courtroom that day.”
Finally, the court summarized its findings:
“Mr. Baez always wanted to plead guilty in this case. He
never retained Mr. Granich. Mr. Granich misled this court
when I first appointed him. It was certainly a mistake on my
part, which I corrected immediately.
It had nothing to do with the Capital Crimes Litigation
Fund. I mean my decision had nothing to do with it. My
decision was that the defendant had not retained counsel. If he
had retained counsel and paid for him to represent him,
certainly he would have had the right to keep him if he paid
him. He did not.
He has the right to counsel, but not counsel of his
choosing unless he retains them. When he is appointed
counsel, then the Court appoints counsel that they believe
should be appointed, and that is, in my mind, the public
defender’s office.
In terms of his guilty plea, it was freely and voluntarily
entered. There was no mistake of law on his part. There was
no mistake of law in this case. He did not plead guilty because
his, quote, unquote, champion had been removed. He pled
guilty because he wanted, quote, closure, as he said, in his
mind for the horrendous offenses that he had perpetrated on
two innocent people.
Of course, the demands on my calendar, as I said, were
certainly an issue in this case, that I was going to have the
case delayed, possibly substitute counsel and a lawyer who
didn’t know when or if he was coming back.
* * *
Again, as I said, the defendant in this case wanted to plead
guilty, always wanted to plead guilty, was never denied a right
to counsel. He pled guilty because he had no choice. He was
going to be convicted, and anyone who heard the facts of this
case was going to sentence Mr. Baez to death.”
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ANALYSIS
I. Right to Counsel
Defendant first argues again that the court’s removal of Granich
violated defendant’s sixth amendment right to counsel and the
parallel right under the state constitution. Specifically, defendant
alleges a violation of his right to counsel and his right to counsel of
choice. Defendant further argues that this violation is not subject to
harmless-error review and that all proceedings after Granich’s
removal on May 22, 2001, are “void and unconstitutional.”
The sixth amendment to the United States Constitution provides:
“[i]n all criminal prosecutions, the accused shall enjoy the right ***
to have the Assistance of Counsel for his defence.” U.S. Const.,
amend. VI. The Supreme Court has held that the right to retained
counsel of choice is included in the sixth amendment right to counsel.
United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006);
Wheat v. United States, 486 U.S. 153, 159 (1988). The Illinois
Constitution’s guarantee that “the accused shall have the right to
appear and defend in person and by counsel” likewise encompasses
the right to counsel of choice. Ill. Const. 1970, art. I, §8; People v.
Holmes, 141 Ill. 2d 204, 217 (1990). Violations of the right to counsel
of choice are structural error not subject to harmless-error review, and
they therefore do not depend on a demonstration of prejudice by
defendant. Gonzalez-Lopez, 548 U.S. at 147-48.
However, “while the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective advocate
for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.” Wheat,
486 U.S. at 159. Thus, the right to counsel of choice is
“ ‘circumscribed in several important respects.’ ” Gonzalez-Lopez,
548 U.S. at 144, quoting Wheat, 486 U.S. at 159. Defendants may
not, of course, insist on representation by an advocate who is not a
member of the bar. Wheat, 486 U.S. at 159. Similarly, a defendant
“may not insist on representation by an attorney he cannot afford or
who for other reasons declines to represent the defendant.” Wheat,
486 U.S. at 159.
Because the right to counsel is not absolute, the trial court is
5We note that the right to counsel of choice does not extend to defendants
who require counsel to be appointed for them. Gonzalez-Lopez, 548 U.S.
at 151; Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624
(1989). Defendant acknowledges this, but he argues that once an attorney
is appointed for an indigent defendant, the defendant has the same right to
continue with that attorney as a defendant who hires an attorney. The State
disputes this assertion, arguing that an indigent defendant has no right to
counsel of choice that would inhibit a court’s ability to remove appointed
counsel. Because we find that Granich’s removal was permissible under the
protections afforded to retained counsel, we need not resolve this dispute.
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granted discretion to remove defense counsel under certain
circumstances. Burnette v. Terrell, 232 Ill. 2d 522, 535 (2009) (“The
principle that a judge has the discretion to remove defense counsel
*** is not in dispute.”). For example, removal may be necessary
when counsel is intoxicated or when counsel’s performance is so
inadequate that the defendant is not receiving the level of assistance
of counsel guaranteed by the sixth amendment. Burnette, 232 Ill. 2d
at 534-35. This court will not disturb the trial court’s decision to
remove counsel absent an abuse of discretion. See Burnette, 232 Ill.
2d at 535. “ ‘An abuse of discretion will be found only where the
court’s ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court.’ ”
People v. Patrick, 233 Ill. 2d 62, 68 (2009), quoting People v. Hall,
195 Ill. 2d 1, 20 (2000).
In addition to the limitations on the right to counsel of choice
noted above, a trial court is granted “wide latitude in balancing the
right to counsel of choice against the needs of fairness [citation] and
against the demands of its calendar.” Gonzalez-Lopez, 548 U.S. at
152. Thus, “[a] judge may also remove defense counsel when the
demands of the court’s calendar necessitate the trial be held when
current counsel is unavailable.” Burnette, 232 Ill. 2d at 534. In sum,
as the appellate court has noted, defendant’s chosen counsel must
stand “ready, willing, and able” to provide competent representation.
See People v. Tucker, 382 Ill. App. 3d 916, 920 (2008).5
In this case, the court removed attorney Granich after learning that
he was not ready to provide representation to defendant. According
to Granich, his motion requested that the court appoint both himself
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and attorney Theis. After the court agreed to appoint Granich,
Granich explained to the court that he was leaving on vacation and
had anticipated that Theis “would take over the litigation of this case
until I return.” Later, Granich reiterated, “what I had anticipated was
Mr. Theis would carry on the case while I was out of town and then
I would be returning to try the case.” When the court characterized his
request as asking for “substitute counsel” rather than the appointment
of two simultaneous attorneys, Granich did not challenge the
characterization. Although Granich told the court on remand that he
planned to share responsibility for the case while out of the country,
the court specifically found that testimony “lacked credibility” and
was “not truthful.”
We also note that Granich never provided the court with specific
dates he planned to be away, despite the court’s direct request that he
submit that information in writing. Granich’s testimony at the remand
hearing suggests that he did not himself know when he would return.
As he told the court, “I kind of just really wanted to see what was
going to happen when I got there. It was kind of a situation where I
wanted to keep one foot here and I wanted to put one foot out there
without necessarily losing what I had developed at that point.”
Although the record does not indicate that the court had this
information at the time it removed Granich from this case, the record
does reflect that the court knew Granich would be gone for “months”
and was not certain when he would return. The court also knew
Granich was considering moving to Israel.
In light of these facts, we find that the court did not abuse its
discretion by removing Granich from the case. Granich did not and
likely could not tell the court when he would return from his vacation
to Israel, but he did make it clear to the court that attorney Theis
would “carry on the case” in the interim. Despite his testimony on
remand that he was “ready, willing, and able” to represent defendant,
Granich’s request that Theis be appointed to conduct the case while
Granich was gone undermines his claim. In fact, Granich made it
clear that, although Theis may have been ready, willing, and able to
take on the case, Granich’s personal travel plans would prevent him
from stepping in until he returned at some unknown date in the future.
Defendant acknowledges that the trial court has the discretion to
remove defense counsel when the demands of the court’s calendar
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necessitate removal. However, defendant argues that the court did not
make an “adequate inquiry” into Granich’s travel plans before
removing him. Defendant asserts that the court should have asked
Granich “how he organized his practice and who would manage it
while he was gone and how he planned on covering Mr. Baez’s case
while away,” and that had it done so it would have found that
Granich’s plans “posed no real obstacle to the progress of this case.”
We disagree.
When removing an attorney from a case, a trial court should make
a record that is “sufficient for a reviewing court to determine whether
circumstances justified the removal.” See Burnette, 232 Ill. 2d at 535.
Here, when the court first found out on May 9, 2001, that Granich
was going to be gone for an extended period of time, it asked whether
counsel would “even do the case.” Granich responded, “I anticipate
returning and trying this case when necessary, Judge, but, what I had
anticipated was Mr. Theis would carry on the case while I was out of
town and then I would be returning to try the case.” Granich also told
the court that he planned on leaving “as of May 25th,” giving the
court less than one month to determine how to proceed. The court
asked Granich to put his plans in writing, but Granich did not. At
some point prior to the May 25 court appearance, the court had a
discussion in chambers with Granich and the State. Although the full
contents of that discussion were not made part of the record, the court
did state on the record that Granich had said he thought he would be
gone for “months.”
The record demonstrates that the court did inquire into Granich’s
plans, both regarding his vacation and regarding how he intended to
handle this case. As we have already stated, Granich’s responses to
the court’s inquiries made clear that Granich’s personal future was
uncertain, but that he intended to have another attorney handle
defendant’s case while he was gone. Further inquiry into how Granich
managed his practice or how he planned to handle other cases during
his absence would have been irrelevant and unnecessary. The court’s
inquiry was sufficient to demonstrate that Granich was not ready to
provide representation to defendant in this capital case.
Defendant also argues that the court’s other proffered reasons for
withdrawing Granich’s appointment were legally unsound, referring
specifically to the court’s assertion that it needed a reason to appoint
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private counsel and that it could not appoint more than one attorney.
Because the reasons discussed above provided adequate grounds to
remove Granich, however, we need not address defendant’s argument
that the other proffered reasons were inadequate. Similarly, defendant
disputes the court’s finding that Granich was never retained by
defendant. Because our analysis of this issue does not turn on whether
Granich was truly retained prior to his appointment, we do not
address this argument.
II. Motion to Withdraw Guilty Plea
Defendant also argues that the circuit court erred when it denied
his motion to withdraw his guilty plea. The decision to grant or deny
a motion to withdraw a guilty plea rests in the sound discretion of the
circuit court and, as such, is reviewed for abuse of discretion. People
v. Delvillar, 235 Ill. 2d 507, 519 (2009); People v. Walston, 38 Ill. 2d
39, 42 (1967). A defendant does not have an automatic right to
withdraw a plea of guilty. People v. Jamison, 197 Ill. 2d 135, 163
(2001). Rather, defendant must show a “manifest injustice” under the
facts involved. Delvillar, 235 Ill. 2d at 520; Jamison, 197 Ill. 2d at
163. The decision of the trial court will not be disturbed unless the
plea was entered through “a misapprehension of the facts or of the
law” or if there is doubt as to the guilt of the accused and justice
would be better served by conducting a trial. Delvillar, 235 Ill. 2d at
520.
Defendant argues that he was “under the misapprehension that the
court had the power and authority to remove his counsel, Mr.
Granich, and he never learned that the court’s action violated his
constitutional rights until his appeal.” As we have explained,
however, the court did not abuse its discretion in removing Granich.
Put differently, the court in fact did have the power and authority to
remove Granich under the circumstances; defendant’s belief in this
regard was therefore not a “misapprehension” at all and his motion
was properly denied.
Defendant also argues that the court erred in “declining to
consider” certain evidence he offered at the hearing on the motion to
withdraw his guilty plea. A court’s decision to exclude evidence is
reviewed for abuse of discretion. People v. Wheeler, 226 Ill. 2d 92,
133 (2007). Evidence is relevant if it has “ ‘any tendency to make the
existence of any fact that is of consequence to the determination of
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the action more probable or less probable than it would be without the
evidence.’ ” People v. Monroe, 66 Ill. 2d 317, 322 (1977) (quoting
Fed. R. Evid. 401). First, defendant contends that the court should
have considered the spreadsheet of expenditures from the Capital
Litigation Trust Fund. He asserts the spreadsheet was relevant
because it shows that Granich “was appointed in capital cases” and
that “the court did not always appoint the public defender office [sic]
but appointed private counsel in August, 2000, in one case.”
Similarly, defendant argues that the testimony of attorney Loeb that
he and attorney Seaton were appointed as private counsel in a capital
case was improperly ignored.
Initially, we note that the record suggests that the court did, in
fact, consider the spreadsheet when it was offered. Although the court
stated that the spreadsheet was irrelevant, it also discussed the
contents of the spreadsheet with counsel, and it said, “the State’s not
contesting it, it’s in.” Even if the court did not consider this evidence,
however, we would hold that the court did not abuse its discretion.
While we acknowledge that the spreadsheet does tend to establish
that Granich was appointed in capital cases and the court did not
always appoint the public defender, defendant does not explain why
those facts are relevant. The issue defendant raised at the hearing on
the motion to withdraw his guilty plea was whether the court properly
removed Granich in this case. As we have explained, the relevant
question is whether Granich was ready, willing, and able to represent
this defendant in this case at the time of his removal. The fact that
Granich or any other private attorney was appointed in other,
unrelated capital cases at other times is not relevant to that
determination. Moreover, we note that even if error occurred, such
error was harmless given the court’s repeated acknowledgments that
it had the authority and discretion to appoint Granich.
Defendant also argues that the court improperly refused to
consider the proffered testimony from Granich about his experiences
as appointed counsel in other capital cases, including a case he and
attorney Blumenfeld handled jointly while Granich was traveling
back and forth to Israel. Defendant argues that this testimony was
relevant “to show Mr. Granich had experience in preparing a capital
case.” Granich’s experience, however, was never at issue. The court
therefore did not abuse its discretion in finding that evidence
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regarding Granich’s experience generally was not relevant. Defendant
asserts that the evidence of how Granich handled other cases during
his travels was also relevant to “refute[ ] the concerns the circuit court
had that the Public Defender Office [sic] was needed in place of Mr.
Granich and associates.” We disagree. The only case at issue in the
hearing to withdraw defendant’s guilty plea was the present case.
Regardless of how Granich handled other pending cases at the time,
he made it clear to the circuit court that he intended for attorney Theis
to take over this case while he was gone.
Finally, defendant argues that the court erred in excluding
Granich’s testimony about what a mitigation expert would have done
had she been hired after Granich’s appointment. He asserts that it was
relevant to show that Granich’s absence would not have delayed the
case. He also argues that the court’s ruling was “highly inconsistent”
with its hearing of the State’s questions to Granich about what he
would have done if he had remained on this case. Neither argument
is persuasive. In contrast to the State’s questions about what
Granich’s intentions were at the time of his removal, defendant’s
excluded question pertained to what a mitigation specialist, who had
not been hired or retained, might have done had Granich been
retained and had Granich hired her. Contrary to defendant’s assertion,
Granich’s testimony that he had already contacted a
specialist–testimony that was relevant to Granich’s plans and
preparation as of his removal–was admitted; the court’s ruling on the
State’s objection specifically noted, “He said he had talked to
somebody.” Further testimony about what the specialist, who had not
been hired as of the date of Granich’s removal just three days before
he planned to leave the country, might have done was not relevant to
the question of whether Granich was ready, willing, and able to
represent defendant. We hold that the court did not abuse its
discretion in refusing to admit this testimony.
III. Defendant’s Right to Represent Himself
After Granich was removed from the case, defendant appeared
with Assistant Public Defender Buchholz twice before September 25,
2001, when he appeared a third time represented by Buchholz. At that
meeting, while discussing a letter defendant sent to the court,
defendant indicated that he was asking to represent himself. The court
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asked if they had discussed the issue before, and defendant said, “No,
we had a discussion about me receiving a new lawyer, and that ended
in a no. And then I tried to obtain my own lawyer, and we’re all
familiar with the outcome of that, and I’d like to proceed pro se.” The
court responded, “You certainly have the right to proceed pro se, Mr.
Baez, if you want to do so. I wouldn’t suggest it. But you certainly
have the right to do so.” As we have recounted in more detail above,
the court told defendant that it would be “unwise” for him to
represent himself. Referring to the letter defendant had sent, the court
noted that defendant wanted Buchholz to “have a serious
conversation” on his behalf; as the court noted in the hearing on
remand, it is clear that the court and defendant were discussing a plea
negotiation. The court explained that before he could begin
negotiations, Buchholz needed time to collect and review every
relevant piece of information. When defendant stated “I don’t think
anybody knows anything better pertaining to the case than I,” the
court responded, “Well, you know, you may know more about what
happened. But you don’t know about the law, Mr. Baez. You don’t
know the negotiation process, because you have never been in this
position.” Defendant answered, “Exactly.” The court then stated,
“You can do whatever you like. If you want to represent
yourself, I’ll give you all the admonishments that the law
requires, and if you decide to represent yourself against my
advice, I mean, that’s what you will do.
But you will be at such a disadvantage, you will be at such
a disadvantage if you are negotiating with the State on your
own, you might tell them things Mr. Buchholz might not tell
him. You might tell them things that would help them try the
case against you rather than help you out.
He knows the things that are going to benefit you and he
knows the things that are going to hurt you, because he knows
the law and you don’t.
So I would suggest that you let him proceed on your
case.”
When defendant maintained that he felt representing himself was the
“best thing” for him, the court responded:
“All right.
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We can do–would you do this for me? Before you make
your decision, will you let Mr. Buchholz review the materials
he has, sit down with you one more time and talk about the
case, talk about–if you still desire to do what you say in this
first paragraph, and if you sit down with him and he will talk
to the State before the next date, I’ll give you a long enough
date to have that conversation, and he can give you an answer
from the State, whatever.
Once you have had that conversation, if you still want to
get rid of your lawyer, I’ll give you all your admonishments
and then you will proceed on your own.
But once you make that decision, you will be on your
own. Mr. Buchholz won’t help you, because I will not appoint
stand-by counsel. *** I want you to know that If you decide
to represent yourself, I don’t help you at all.
You’re in an unbelievably terrible position when you try
to represent yourself. *** I would not possibly represent
myself, even as a lawyer, and I have been a judge fourteen
years, a lawyer for twenty-seven. I would not represent myself
no matter what the charge was.
All right?”
Defendant replied, “Yes, ma’am.”
Later, when Buchholz indicated that he had hired a mitigation
expert, the court turned again to defendant and said,
“What he’s saying, he’s hired a mitigation expert. That
expert has to interview every witness that you give him that
he believes would have information that would benefit you.
A mitigation expert.
* * *
And it would be something he could utilize trying to
negotiate for you, too.
So I think you ought to be a little more patient and realize
that even though you think that representing yourself might be
to your benefit, it may seal your fate.
All right?”
Defendant again replied, “Yes, ma’am.”
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At defendant’s next appearance, on November 13, 2001,
Buchholz told the court that he and defendant had met to discuss all
of the relevant evidence and how defendant wished to proceed in the
case. Turning to defendant, the court said, “You have got[ten] to talk
to your attorney and see the videotape.” Before the court asked any
questions, however, defendant responded, “And I agree to have
counsel represent me.”
Defendant now argues that he made a “clear and unequivocal”
request to represent himself that was improperly “deferred” by the
court, in violation of his sixth amendment rights and his rights under
the Illinois Constitution. For the reasons below, we reject defendant’s
claim.
A defendant has a constitutional right to represent himself.
Faretta v. California, 422 U.S. 806, 835 (1975); People v. Burton,
184 Ill. 2d 1, 21 (1998). In order to represent himself, a defendant
must knowingly and intelligently relinquish his right to counsel.
Faretta, 422 U.S. at 835; Burton, 184 Ill. 2d at 21. It is “well settled”
that waiver of counsel must be clear and unequivocal, not ambiguous.
See Burton, 184 Ill. 2d at 21 (collecting cases). A defendant waives
his right to self-representation unless he “ ‘articulately and
unmistakably demands to proceed pro se.’ ” Burton, 184 Ill. 2d at 22,
quoting United States v. Weisz, 718 F.2d 413, 426 (D.C. Cir. 1983).
The purpose of requiring that a criminal defendant make an
unequivocal request to waive counsel is to: “(1) prevent the defendant
from appealing the denial of his right to self-representation or the
denial of his right to counsel, and (2) prevent 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.” People v.
Mayo, 198 Ill. 2d 530, 538 (2002).
In determining whether a defendant’s statement is clear and
unequivocal, a court must determine whether the defendant truly
desires to represent himself and has definitively invoked his right of
self-representation. Burton, 184 Ill. 2d at 22. Courts must “indulge in
every reasonable presumption against waiver” of the right to counsel.
Brewer v. Williams, 430 U.S. 387, 404 (1977); Burton, 184 Ill. 2d at
23. The determination of whether there has been an intelligent waiver
of the right to counsel must depend, in each case, upon the particular
facts and circumstances of that case, including the background,
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experience, and conduct of the accused. People v. Lego, 168 Ill. 2d
561, 565 (1995).