                                        2017 IL App (1st) 143566
                                             No. 1-14-3566
                                      Opinion filed October 10, 2017
                                                                                       Second Division


                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT


                                                           )
                                                                 Appeal from the Circuit Court
                                                           )
     THE PEOPLE OF THE STATE OF ILLINOIS,                        of Cook County.
                                                           )
                                                           )
            Plaintiff-Appellee,
                                                           )
                                                                 No. 08 CR 17177
                                                           )
     v.
                                                           )
                                                           )
     EDWARD GIBSON,                                              The Honorable
                                                           )
                                                                 Domenica A. Stephenson,
                                                           )
            Defendant-Appellant.                                 Judge, presiding.
                                                           )
                                                           )


            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.

                                                  OPINION

¶1          In the years before his trial for murder and concealment of a homicidal death, Edward

     Gibson rejected three public defenders and decided to represent himself. But just before voir

     dire, Gibson asked the trial court to reappoint the public defender’s office. The trial court found

     that this was a delay tactic and denied the request, so Gibson refused to enter the courtroom for

     his own trial. He was tried in absentia, without counsel, and convicted of both counts.

¶2          Gibson now challenges the trial court’s refusal to appoint the public defender’s office

     when he made his last-minute request. We find that the trial court did not abuse its discretion,
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     since it found that Gibson’s request was an attempt to delay the trial proceedings. Gibson also

     argues that the trial court should have appointed him counsel before trying him in absentia, but

     this issue is foreclosed by People v. Eppinger, 2013 IL 114121.

¶3                                             Background

¶4          In September 2008, Gibson was indicted for first degree murder and concealment of a

     homicidal death. The public defender’s office was appointed to represent him, and an assistant

     public defender appeared on Gibson’s behalf in October 2008.

¶5          In a May 2009 court appearance, Gibson complained about his counsel and asked to have

     a pro bono attorney appointed or to represent himself pro se. The trial court questioned Gibson

     about his ability to represent himself, told Gibson that it would not appoint a pro bono attorney,

     and arranged to have Gibson speak with a supervisor from the public defender’s office. At a

     court appearance two months later, Gibson was represented by two other assistant public

     defenders, Brown and Hirschboeck.

¶6          In September 2009, Gibson told the trial court that he wanted to represent himself. The

     trial court warned Gibson that this was a bad idea, questioned him on his ability to represent

     himself, and admonished him of the charges against him. Mid-admonishment, Gibson collapsed

     on the floor, and the court recessed. When the court reconvened two weeks later, Gibson told the

     trial court he wanted Brown and Hirschboeck to represent him.

¶7          But in October 2009, Gibson changed his mind and told the court he wanted to represent

     himself until he could find a pro bono attorney. The trial court again admonished Gibson as to

     the dangers of self-representation and told Gibson that the court would not appoint a pro bono

     attorney or give him any special privileges if he represented himself. Gibson reiterated his desire

     to represent himself.


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¶8            At the November 2009 court date, Gibson represented himself but continued to complain

       about his former public defenders. He asked for appointment of a pro bono attorney, but the trial

       court denied it.

¶9            At the January 2010 court date, the trial court asked Gibson if he wanted to have the

       public defenders reappointed. Gibson said no and continued to complain about his former

       attorneys. In April 2010, Gibson asked for appointment of counsel other than the public

       defender, which was denied.

¶ 10          Between January and June 2011, Gibson several times asked the trial court to appoint

       him a pro bono attorney and continued to complain about his former public defenders. The trial

       court continued to deny him appointment of a pro bono attorney or standby counsel to assist

       Gibson, but offered to reappoint the public defender’s office. Gibson declined.

¶ 11          In July 2011, Gibson again asked for an attorney, and the trial court offered to reappoint

       the public defender’s office while warning Gibson that Brown would probably be assigned to his

       case, since she had represented him previously, and that the court would not allow Gibson to fire

       Brown again because it would be a delay tactic. Gibson agreed to have the public defender’s

       office reappointed. But when Brown and Hirschboeck appeared for Gibson at the next court date,

       Gibson complained about them again and stated that he wanted to represent himself. The judge

       warned him that this decision would be final: “[I]f you come back next week or you come back

       on the trial date and ask me to re-appoint the Public Defender or ask me for an attorney other

       than the Public Defender, it will be denied.” Gibson stated that he wanted to go pro se, though

       the trial court warned him it was a mistake, and the court admonished him and allowed the public

       defenders to withdraw.




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¶ 12          In August 2011, Gibson represented himself but continued to complain about his former

       attorneys and asked for a pro bono attorney, which the trial court denied. In October 2011,

       Gibson asked for an attorney from the “Murder Task Force” (a group within the public

       defender’s office). The trial court pointed out to Gibson that public defender Brown was a

       member of the murder task force, and Gibson stated that he needed time to decide whether he

       wanted the public defender’s office to represent him. In December 2011, Gibson again asked for

       an attorney from the murder task force. The trial court stated that it would reappoint the public

       defender’s office, but Gibson would not be able to pick his public defender, and Brown or

       Hirschboeck would probably be reassigned to the case. The trial court denied Gibson’s request

       for a murder task force attorney other than Brown or Hirschboeck and denied standby counsel.

¶ 13          Between February and May 2012, Gibson repeatedly asked the trial court for an attorney

       from the murder task force. The trial court explained that it could reappoint the public defender’s

       office, but that Brown and Hirschboeck would probably be reassigned to the case, and the court

       would not direct otherwise. The trial court also denied Gibson’s motions for appointment of a

       pro bono attorney and commented on Gibson’s motions: “[W]e keep going round and round and

       round in circles.”

¶ 14          The case was set for jury selection on June 4, 2012. Gibson told the trial court he was not

       ready to proceed. The trial court told Gibson that if it reappointed the public defender’s office,

       the case would probably be assigned to Brown and Hirschboeck. Gibson stated that he would

       accept Brown and Hirschboeck, but the trial court found that Gibson was trying to delay trial and

       denied his request for reappointment of the public defender’s office. Gibson represented himself

       during voir dire.




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¶ 15           On June 6, the first day of trial, the sheriff told the trial court that Gibson had refused to

       leave the lockup and enter the courtroom. The trial court (accompanied by the State’s attorneys

       and the court reporter) went into the lockup area to see Gibson, who told them that he would not

       come out because he needed a proper lawyer. The trial court stated that it had addressed this

       issue before and warned Gibson that trial would go forward without him: the jury would be told

       that Gibson was present in the building, a microphone would be set up to allow Gibson to hear

       all of the proceedings, and Gibson would be asked whether he wanted to present an opening

       statement or cross-examine each witness. However, Gibson would not be able to see the State’s

       exhibits. Gibson again stated that he would not come out of the lockup, and trial began without

       him. The trial court informed the jury that Gibson had chosen not to be present, but could hear

       everything, and that the jury should not hold his absence against him.

¶ 16           When it was time for Gibson to give his opening statement, the trial court sent the sheriff

       to the lockup to ask Gibson whether he wanted to give a statement; the sheriff reported that

       Gibson did not answer. The same thing happened after the first witness, and the trial court

       recessed and went to the lockup to ask Gibson again. He refused to answer, and the trial court

       warned him that his absence meant he couldn’t object to any of the State’s questions or see the

       State’s exhibits. Gibson stated that he could not adequately represent himself and asked for a

       lawyer from the murder task force. The judge denied his request, stating “[W]e’re beyond that

       now.”

¶ 17           At the conclusion of testimony from each witness, the trial court instructed the sheriff to

       go to the lockup and ask Gibson whether he wanted to cross-examine. The sheriff then told the

       judge (off the record) that Gibson had not responded to the sheriff’s question, or had said no, and

       the trial court told the jury that Gibson had chosen not to cross-examine each witness.


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¶ 18          During the lunch break on the first day, the trial court again went to the lockup and asked

       Gibson whether he wanted to participate; Gibson again asked for an attorney. The trial court

       stated that these requests had already been ruled on, and the trial court did not want to appoint an

       attorney mid-trial. At the end of the first day, the trial court again went back to the lockup and

       told Gibson that if he changed his mind, he could participate on the second day of trial.

¶ 19          On the morning of the second day, the trial court went back to the lockup to ask again,

       and Gibson declined, reiterating his request for a lawyer, which the trial court denied. The trial

       court followed the same procedure for cross-examination as the day before.

¶ 20          At the end of the State’s case, the trial court again went back to the lockup and asked

       Gibson whether he had any motions to present or wanted to testify. Gibson repeated his

       complaint about not having an attorney. The trial court admonished Gibson as to his right to

       testify and asked him whether he wanted any particular jury instructions. Gibson did not respond

       to either topic and again asked for an attorney from the murder task force, which the trial court

       denied. Gibson did not participate in the jury instruction conference.

¶ 21          On the third day of trial, Gibson chose not to present a closing argument. The jury

       convicted him on both counts. The trial court asked Gibson if he wanted to have the public

       defender’s office reappointed to handle his posttrial proceedings, warning him that Brown and

       Hirschboeck would probably be reappointed as the trial court did not have any control over

       assignments within the public defender’s office. Gibson again complained about his former

       attorneys and asked for a pro bono attorney, which was denied. The State suggested that the trial

       court reappoint the public defenders until the next court date, and the trial court did. At the next

       court date, Gibson stated that he needed 30 days to decide whether he wanted the public

       defenders, but the trial court denied that time. Gibson decided to keep the public defenders.


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¶ 22          Brown and Hirschboeck appeared on Gibson’s behalf at the next court date and filed a

       motion for a new trial, arguing that the trial court had erred in not reappointing the public

       defender for Gibson’s trial, and in holding Gibson’s trial in absentia without appointing counsel.

       The trial court denied the motion and sentenced Gibson to 35 years of imprisonment.

¶ 23                                                Analysis

¶ 24                                  Denial of Appointment of Counsel

¶ 25          The sixth amendment guarantees a defendant the right to counsel. People v. Burton, 184

       Ill. 2d 1, 21 (1998). The same amendment also gives a defendant the right to represent himself or

       herself. Id. To do so, the defendant must knowingly and intelligently waive the right to counsel,

       in a clear and unequivocal manner. People v. Pratt, 391 Ill. App. 3d 45, 52 (2009). The waiver

       applies to all subsequent proceedings (unless circumstances suggest the waiver is limited to a

       particular stage). Id. If a defendant wishes to revoke that waiver later on, it is within the trial

       court’s discretion whether to appoint new counsel. Id. at 53. The trial court need not allow the

       defendant to revoke the waiver if the court believes that the defendant is trying to delay the trial

       proceedings. People v. Jones, 2015 IL App (2d) 120717, ¶ 36.

¶ 26          Gibson does not argue that his initial waiver of counsel was invalid, only that the trial

       court abused its discretion in not reappointing the public defender’s office when Gibson made his

       final request, just before voir dire. The record on this issue is extensive, stretching over a period

       of years and dozens of court dates. Gibson was repeatedly told that, despite his unhappiness with

       a trio of public defenders, he could not choose a fourth public defender and the trial court would

       not appoint him an attorney from outside that office. Gibson changed his mind several times and

       was then warned by the trial court that his decision to go pro se was final. The record supports

       the trial court’s finding that Gibson was attempting to delay proceedings by trying to accept


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       Brown and Hirschboeck just before voir dire, after rejecting the idea at several previous court

       dates. Pratt, 391 Ill. App. 3d at 56 (trial court did not abuse discretion in denying appointment of

       counsel on day trial was set to commence and finding that defendant’s request was delay tactic).

       The trial court handled itself with commendable patience and propriety. We cannot say that the

       trial court abused its discretion.

¶ 27                               Denial of Counsel During Trial In Absentia

¶ 28           Next, Gibson argues that, since his trial proceeded in absentia, the trial court was

       required to appoint him counsel under section 115-4.1(a) of the Code of Criminal Procedure (725

       ILCS 5/115-4.1(a) (West 2012)). That statute states that if a defendant “fails to appear for trial”

       and the State proves that the defendant “is willfully avoiding trial,” he may be tried in absentia

       but must be represented by retained or appointed counsel. Id. During that trial, all the statutory

       and constitutional rules will still apply “the same as if the defendant were present in court and

       had not either forfeited his bail bond or escaped from custody.” Id. In Eppinger, 2013 IL

       114121, our supreme court held that, based on the statutory language and the legislative history,

       this statute does not apply to in-custody defendants (like Gibson) who are present in the court

       building but simply refuse to leave the holding cell. Id. ¶ 40. So, Gibson is not entitled to

       appointment of counsel under this statute.

¶ 29           Gibson argues that Eppinger was wrongly decided, but offers no precedent to the

       contrary. We must follow the statutory interpretations of our supreme court. Gibson argues that

       the Eppinger rule offers greater protection to bail jumpers (who would be tried in absentia but be

       granted counsel) than in-custody defendants like him (who would be tried in absentia without the

       right to appointed counsel). The Eppinger court acknowledged this anomaly, deciding that it was

       preferable to a rule holding that the statute applies to all defendants regardless of physical


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       location: it “would prevent manipulation of the right to counsel; in-custody pro se defendants

       would not gain an advantage from their voluntary absence.” Id. ¶ 31. This concern holds true—

       the timing of Gibson’s various requests supports the trial court’s finding that he was attempting

       to delay proceedings by alternately requesting and rejecting representation by public defenders.

¶ 30           Gibson argues that his case is sui generis because it involved both the waiver of counsel

       and a trial in absentia, excusing him from citing precedent to support his point. But the defendant

       in Eppinger was appointed a public defender, and after he expressed dissatisfaction with that

       attorney, the trial court appointed him a second public defender. Id. ¶ 4. A week before the first

       scheduled trial date, Eppinger requested to represent himself; after the proper admonishments,

       the trial court allowed him to do so. Id. ¶ 5. For several months, he represented himself, filing

       motions, including a request for standby counsel that was denied. Id. ¶¶ 6-8. On the morning of

       trial, he reversed himself, asking the court to appoint counsel. Id. ¶ 10. The trial court denied that

       motion, finding it was a delay tactic, and Eppinger responded by refusing to come out of the

       holding cell to participate in the first day of jury selection. Id. ¶¶ 10-11. He did participate in the

       remainder of his trial. Id. ¶ 12.

¶ 31           Gibson is apparently not the first defendant to express his last-minute reluctance to

       represent himself by refusing to be present in the courtroom. He has not provided us with any

       reason why the interaction of these two issues (self-representation and trial in absentia) should

       lead us to a different result on either. The trial court did not abuse its discretion in refusing to

       reappoint the public defender when Gibson made his final request, and did not err in allowing a

       trial in absentia, sans counsel, when Gibson refused to come out of the lockup.

¶ 32           Affirmed.




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