Opinion
No. 1-11-2540
08-29-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAMIEN HOLMON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 06 CR 27573
Honorable
William T. O'Brien,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Fitzgerald Smith and Pucinski concurred in the judgment.
ORDER
¶ 1 Held: Where the record does not reveal the trial court found a bona fide doubt as to defendant's fitness to stand trial, the court was not required to hold a fitness hearing. The trial court did not abuse its discretion when it permitted defendant to proceed pro se after admonishing defendant of the charges against him, the possible penalties, and the right to counsel where the record does not establish that defendant suffered from a "severe mental illness" pursuant to Indiana v. Edwards, 554 U.S. 164 (2008), such that although fit to stand trial with counsel, defendant was nonetheless incompetent to defend himself. ¶ 2 After a violation of probation (VOP) hearing during which he represented himself, defendant Damien Holmon was found in violation of probation, his probation was revoked, and he was sentenced to seven years in prison for possession of a controlled substance with intent to deliver. On appeal, defendant contends that the trial court erred when it held the VOP hearing without first conducting a fitness hearing because the trial court had previously found a bona fide doubt as to his fitness to stand trial. Defendant further contends that the court failed to ensure that he was competent to waive his right to counsel. We affirm. ¶ 3 In May 2007, defendant entered a plea of guilty to possession of a controlled substance with intent to deliver and was sentenced to three years of probation. In 2010, a probable cause hearing was held on an unrelated case and the State was granted leave to file a VOP. At a subsequent hearing, the State elected to proceed on the VOP, and defendant's counsel asked for a fitness examination. ¶ 4 At an April 2010 hearing, defense counsel acknowledged that defendant had been found legally sane and fit to stand trial. Defendant then addressed the court. He indicated that his name needed to be changed to Damien Lemar Holmon Bey, that he was a Moorish national, and that he was coming into court as "himself." Defendant then indicated that he wanted to represent himself. The court explained to defendant the offenses with which he was charged, the possible penalties, and that he had the right to an attorney. The court then inquired as to defendant's educational background. Defendant explained that he was five classes "short" of receiving an accounting bachelor's degree, did not have any legal training, and had never represented himself. Defendant informed the trial court that it lacked jurisdiction over him because he was a Moorish citizen. The court disagreed. Ultimately, the court ordered a second fitness examination because the court did not think that defendant had "sufficient understanding" of the proceedings "to even waive [his] right to act as [his] own counsel." At the next hearing, when defendant again indicated that he wanted to represent himself, the court stated that "right now" it was not defendant's choice, but that the court's position "may change" based upon the forthcoming Forensic Clinical Services report. However, in the interim, the public defender remained defendant's attorney. ¶ 5 At a June 2010 hearing, the court stated that the report from Forensic Clinical Services stated that defendant had been found fit to stand trial and legally sane. Defendant again indicated that he wished to represent himself. The court explained to defendant the charges against him and that defendant had the right to be represented by an attorney. After defendant indicated that he understood, the court admonished him that if he represented himself, he would be treated like any other attorney and that if things started "to go bad" at trial, he could not call a "time-out" and ask for an attorney. Defendant indicated that he understood. The trial court then granted the public defender leave to withdraw and permitted defendant to proceed pro se. ¶ 6 Defendant stated that he was a Moorish-American, that he was not Damien Holmon "ficticial [sic] character," and that the Uniform Commercial Code applied to this case. The court and defendant then had a lengthy discussion about defendant's nationality and the court's jurisdiction. The court asked defendant to reduce his arguments to writing and file a motion. Ultimately, the court indicated that it was going to send defendant for another fitness examination and request that the doctor come to court. However, unlike the previous two fitness examinations, the court did not enter a referral order to this effect. ¶ 7 At the next court date, defendant told the court that he refused to give Forensic Clinical Services any authority to evaluate him. The cause was continued so that defendant could prepare a motion to dismiss. Defendant next filed a pro se "affidavit of fact, demand for dismissal," arguing that the trial court lacked jurisdiction because he was a "sovereign Moor." In denying defendant's motion, the court again explained the charges against defendant, indicated that defendant had been examined twice by Forensic Clinical Services and had twice been found fit to stand trial, and concluded that the court had jurisdiction. When defendant indicated that he wished to appeal this denial, the trial court ordered the Office of the Public Defender to assist him. However, defendant refused this appointment and stated that he had written to our supreme court. He then filed a second pro se motion to dismiss, which was also denied. ¶ 8 At a subsequent hearing, defendant indicated that he wished to challenge his new arrest because the officers lacked probable cause. The court explained that because the State elected to proceed on the VOP, defendant did not have the right to file a motion to quash arrest. Defendant responded by requesting a continuance because he had not received a response from our supreme court regarding his challenge to the court's jurisdiction. Despite defendant's continued arguments that the court lacked jurisdiction, the matter proceeded to a VOP hearing. ¶ 9 There, Assistant State's Attorney Karan Baltaza testified that defendant entered a plea of guilty on May 17, 2007, to the Class 1 offense of possession of a controlled substance with intent to deliver in Case 06 CR 27573, and was sentenced to three years of probation. ¶ 10 Sergeant Michael Murzyn testified that at approximately 2:50 a.m. on December 31, 2009, he observed a car, driven by defendant, go through a red light. Murzyn then approached defendant and requested defendant's driver's license and insurance information. When defendant was unable to produce either, Murzyn placed defendant in custody. Subsequent custodial searches of defendant recovered suspect crack cocaine, suspect heroin, and suspect cannabis. After "running" defendant's name, Murzyn discovered that defendant's driver's license had been revoked. ¶ 11 Defendant testified in his own defense. He denied running a red light and asserted that the light was yellow. However, a police officer came behind him, handcuffed him, and placed him in a squad car. When the officer asked for his driver's license and insurance information, defendant stated that he had insurance but that he only had his "ID" with him and told the officer that he was on probation. Defendant denied that he had any contraband. During cross-examination, defendant testified that at the time of his arrest, he believed that his license had been reinstated. He admitted, however, that he had not paid the $633 required to reinstate the license because he was not using his driver's license for commercial purposes. He did not feel that he needed a driver's license because he knew he had the right to travel. ¶ 12 Ultimately, the court found defendant guilty, by a preponderance of the evidence, of a violation of probation, revoked defendant's probation, and sentenced him to seven years in prison for possession of a controlled substance with intent to deliver. ¶ 13 On appeal, defendant contends that the trial court found that a bona fide doubt as to his fitness existed when it ordered a fitness hearing, and, therefore, the court was required to hold a fitness hearing before proceeding to the VOP hearing. He further argues that his lengthy diatribes and behavior before the court supported the court's finding. The State, however, responds that although the trial court ordered several fitness examinations, these examinations were only to aid the court in determining whether a bona fide doubt of fitness actually existed, and that the court never ordered a fitness hearing. ¶ 14 Defendant admits that his failure to raise this issue before the trial court has resulted in its wavier on appeal (see, e.g., People v. Enoch, 122 Ill. 2d 176, 186 (1988)), but he asks this court to review it for plain error. ¶ 15 Pursuant to the plain error doctrine, this court may address unpreserved errors "when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence." People v. Herron, 215 Ill. 2d 167, 186-87 (2005). The first step in determining whether the plain error doctrine applies is to determine whether any reversible error occurred. People v. Patterson, 217 Ill. 2d 407, 444 (2005). ¶ 16 A defendant is presumed to be fit for trial and fit for sentencing. 725 ILCS 5/104-10 (West 2010). A defendant is unfit when he is unable to understand the nature and purpose of the court proceedings or cannot assist with his defense due to his mental or physical condition. 725 ILCS 5/104-10 (West 2010). A defendant's due process rights are violated when he is subjected to trial or sentencing while being unfit. People v. Sandham, 174 Ill. 2d 379, 382 (1996). The trial court may request a fitness examination to assist in its determination of whether a bona fide doubt of a defendant's fitness exists without a fitness hearing becoming mandatory. People v. Hanson, 212 Ill. 2d 212, 217 (2004). When the trial court finds that a bona fide doubt of the defendant's fitness exists, the court must hold a fitness hearing before proceeding any further. 725 ILCS 5/104-11(a) (West 2010); Hanson, 212 Ill. 2d at 217. However, when the court finds, following a fitness examination, that there is no bona fide doubt as to the defendant's fitness no further hearings regarding the issue of fitness are necessary. Hanson, 212 Ill. 2d at 217. ¶ 17 The question of whether a bona fide doubt of fitness exists is fact-specific (People v. Tapscott, 386 Ill. App. 3d 1064, 1077 (2008)), and generally rests within the discretion of the trial court (People v. Garcia, 2012 IL App (1st) 103590, ¶123). The fact that a trial court grants a defendant's motion for a fitness examination does not, in and of itself, establish that the court found a bona fide doubt as to the defendant's fitness. Hanson, 212 Ill. 2d at 222. Our supreme court has held that "the existence of a mental disturbance or the need for psychiatric care does not necessitate a finding of bona fide doubt since '[a] defendant may be competent to participate at trial even though his mind is otherwise unsound.' " Hanson, 212 Ill. 2d at 224-25, quoting People v. Eddmonds, 143 Ill. 2d 501, 519 (1991). ¶ 18 Here, the record does not indicate, contrary to defendant's argument on appeal, that the trial court ever ordered a fitness hearing. Rather, the record reveals that defendant was subject to two examinations by Forensic Clinical Services and each time the examining doctors deemed him fit to stand trial. Although the trial court stated that it was going to send defendant for a third fitness examination and have that doctor come and speak to the court, the court did not enter an order to such an effect. ¶ 19 This court cannot agree with defendant's conclusion that the trial court's statement that it was going to send defendant for a third fitness examination and "ask the doctor to come out and talk to us" established the court's intention to conduct a fitness hearing. Pursuant to section 104-13(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-13(a) (West 2010)), the trial court can order that a defendant undergo a preliminary fitness examination in order to determine whether a bona fide doubt exists as to his fitness. Our supreme court has held that a trial court's grant of a defendant's motion for a fitness examination does not, in and of itself, establish that the court found a bona fide doubt as to the defendant's fitness. Hanson, 212 Ill. 2d at 222. Therefore, even if the court sua sponte entered an order for a third fitness examination and requested that the doctor deliver her results in person rather than by letter, that in and of itself, does not indicate that the court actually believed that a bona fide doubt as to defendant's fitness existed. See Hanson, 212 Ill. 2d at 217. ¶ 20 In the case at bar, defendant underwent two fitness examinations by Forensic Clinical Services, and was found fit to stand trial twice. Although the trial court discussed sending defendant for a third fitness examination, it never entered such an order, and never indicated that it had a bona fide doubt as to defendant's fitness. The able and experienced trial judge showed patience in each of defendant's court appearances and clearly considered the issue of defendant's fitness for trial. While at one point the judge made an isolated remark about having the doctor appear in court, that statement neither expressly or impliedly demonstrates that he had a bona fide doubt as to the defendant's fitness. His decision not to schedule a fitness hearing was certainly not an oversight under the facts of this case. His decision not to schedule a fitness hearing, given the time, attention and consideration he gave to this issue demonstrates that the judge, based on the doctors' reports, and his observations and conversations with the defendant, did not have a bona fide doubt of defendant's fitness. Therefore, no further hearings regarding defendant's fitness were necessary (see Hanson, 212 Ill. 2d at 217), and the trial court did not abuse its discretion when it did not hold a fitness hearing (Garcia, 2012 IL App (1st) 103590, ¶123), before proceeding to the VOP hearing. Absent error, there can be no plain error (Patterson, 217 Ill. 2d at 444), and defendant's claim must fail. ¶ 21 Defendant next contends that the trial court failed to ensure that he was competent to waive his right to counsel and represent himself. ¶ 22 Generally, a criminal defendant has a constitutional right to represent himself if he makes an unequivocal request to do so. People v. Silagy, 101 Ill. 2d 147, 179 (1984). When a defendant elects to proceed pro se, the trial court is required to admonish him of the nature of the charge, the possible penalties should he be convicted, and his right to be represented by counsel. Supreme Court Rule 401(a) (eff. Jul. 1, 1984). ¶ 23 However, in order to effectively exercise the constitutional right to self-representation, a defendant must have the mental competency to conduct his own defense. Indiana v. Edwards, 554 U.S. 164, 174, 178 (2008). Pursuant to Edwards, a court may deny a request for self-representation on the part of a defendant who is fit to stand trial but who suffers from such "severe mental illness" that he is "not competent to conduct the trial proceedings" by himself. Edwards, 554 U.S. at 177-78. However, a defendant's request to proceed pro se may not be refused simply because he is ignorant regarding "the technical rules of law" (People v. Fisher, 407 Ill. App. 3d 585, 589, 591 (2011)), or because the trial court believes that the defendant's choice is "is ill-advised, unwise, or unsound, however correct that opinion may be" (People v. Ward, 208 Ill. App. 3d 1073, 1085 (1991)). A trial court's decision concerning a defendant's request for self-representation is reviewed for an abuse of discretion. People v. Rohlfs, 368 Ill. App. 3d 540, 545 (2006). ¶ 24 Here, the trial record does not establish that defendant suffered from a "severe mental illness" such that his capacity for self-representation was impacted. See Edwards, 554 U.S. at 177-78. Defendant was examined twice by Forensic Clinical Services, and twice found fit to stand trial. Although defendant asserted that his identity as a Moorish-American deprived the court of jurisdiction and placed him under a different set of laws, he also stated that he was several credits short of a bachelor's degree, indicated that he understood the charges against him and the possible penalties, and was unwavering in his desire to represent himself. Without more evidence in the record, we cannot find that defendant suffered from a severe mental illness which rendered him incompetent to represent himself. See People v. Sheley, 2012 IL App (3d) 090933, ¶ 25 (the record failed to show that the defendant suffered from a severe mental illness which would "affect his competency to conduct his own defense" when, although the defendant had suffered prior cocaine-induced mental hallucinations and exhibited antisocial behavior, two experts failed to diagnose a severe mental illness and one specifically found that defendant did not suffer from "any mental impairment" that would affect his fitness to stand trial or his ability to proceed pro se). ¶ 25 Additionally, defendant's performance at various hearings and at the VOP hearing itself does not support a finding of incompetency. Defendant unsuccessfully attempted to dismiss the case, unsuccessfully tried to quash his arrest, and unsuccessfully appealed the trial court's finding regarding jurisdiction to our supreme court because these actions were based on meritless legal theories. However, these were nothing more than the mistakes of "a nonlawyer defending himself." People v. Tatum, 389 Ill. App. 3d 656, 670 (2009). Defendant presented a defense at the VOP, that is, he believed that his driver's license had been reinstated and that he did not need it merely to drive, examined witnesses, and presented opening and closing statements. Ultimately, his failure to obtain a favorable result was the result of an ignorance of the law and his belief that his self-identification as a "Moorish-American" defeated the trial court's jurisdiction, rather than the result of any mental deficiencies. See Edwards, 554 U.S. at 178 (finding that the Constitution permits States to insist upon representation by counsel for those defendants competent enough to stand trial, but who still suffer from severe mental illness such that they are not competent to conduct trial proceedings by themselves and rejecting a standard that would hinge on a defendant's ability to communicate coherently with the court). Here, defendant "was misguided by his own choices, not his lack of mental competence," (People v. Allen, 401 Ill. App. 3d 840, 853 (2010)), and, accordingly, the trial court did not abuse its discretion when it permitted defendant to proceed pro se (Rohlfs, 368 Ill. App. 3d at 545). ¶ 26 Defendant, however, relies on Indiana v. Edwards, 554 U.S. 164 (2008), to argue that a person's competency to waive counsel and represent himself may be held to a higher standard than the minimal constitutional requirement that measures a defendant's fitness to stand trial with counsel. Defendant maintains that the trial court should have conducted a separate inquiry or hearing as to whether he was competent to proceed pro se. ¶ 27 However, this court considered, and rejected, a similar argument in People v. Allen, 401 Ill. App. 3d 840 (2010). There we found, contrary to defendant's argument, that Edwards did not hold that there exists a higher standard of competence requiring an additional inquiry before a trial court can allow a defendant to pro se. See Allen, 401 Ill. App. 3d at 851. Rather, we determined that Edwards held that a defendant's right to proceed pro se was not absolute and "could be limited if a defendant was not mentally competent to proceed pro se, yet was still competent to stand trial with representation." Allen, 401 Ill. App. 3d at 851. Accordingly, we continue to adhere to this court's decision in Allen. ¶ 28 For the reasons stated above, the judgment of the circuit court of Cook County is affirmed. ¶ 29 Affirmed.
The records contains two spellings, Bey and Bay.