People v. Exson ( 2008 )

FIRST DIVISION
September 29, 2008
No. 1-06-0924
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
MARVIN EXSON, ) Honorable
) Mary M. Brosnahan,
Defendant-Appellant. ) Judge Presiding.
Modified Upon Denial of Rehearing
JUSTICE WOLFSON delivered the opinion of the court:
The defendant was found guilty by a jury of two counts of
possession of a controlled substance. He was sentenced to
concurrent terms of three years in prison. The only issue in
this case is whether the defendant’s statutory right to a speedy
trial was violated when the trial court granted the State a 30-
day extension of the 120-day trial term. We conclude it was. We
reverse the trial court’s judgment and remand the cause with
directions to enter an order discharging the defendant.
FACTS
Defendant was arrested on March 2, 2005, for possession of
cocaine and heroin. Defendant was unable to post bond and
remained incarcerated until April 13, 2005, when he was placed on
an electronic home monitoring program. Defendant filed a motion
to quash his arrest and suppress evidence on May 2, 2005,
alleging he was arrested without probable cause. On June 9,
2005, defendant made a demand for trial, but the State answered
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it was not ready to proceed. The matter was continued until
August 3, 2005. On that date, the State filed another motion to
continue the cause to August 22, 2005. The motion was granted.
Defendant again demanded trial.
On August 22, 2005, defendant requested leave to withdraw
his motion to quash, demanded trial, then asked to reinstate his
motion to quash and suppress. The State objected to the
reinstatement of the motion because only one day remained before
the expiration of the 120-day speedy trial period. The trial
court overruled the objection and conducted a hearing in the
matter. The court then denied the motion and defendant answered
ready for jury trial.
The State responded it was not ready to proceed with a jury
trial because it had not located the chemist who conducted the
forensic testing of the drugs seized from defendant and requested
a continuance. The State explained it was under the impression
that defendant was going to be tried by the judge, and therefore
assumed defendant’s attorney, an assistant Cook County public
defender, would stipulate to the results of the forensic testing,
as was the custom of that office.
Defense counsel objected to the continuance, noting she
never indicated her client would stipulate to the forensic test
results. She acknowledged that the matter was set for a bench
trial, and that it was the custom of her office to stipulate to
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laboratory results in bench trials involving narcotics
possession. She said she never indicated this custom would not
be followed in this case, although the Assistant State’s Attorney
never asked. She said defendant had a right to a jury trial, had
never waived that right, and was ready to proceed to trial.
When asked to explain its search for the chemist, the State
informed the court that after it learned of defendant’s jury
trial demand that morning it called the Illinois State Police
Crime Laboratory and was told the chemist who performed the
analysis was no longer employed there. The State also tried to
locate the chemist through her last known address and telephone
number, but was unsuccessful. This was the State’s first attempt
to contact the chemist.
At the conclusion of this hearing, the trial court granted
the State’s request for a 30-day continuance, to September 19,
2005. In doing so, the court noted that it is "the custom of the
parties when a bench trial is indicated that stipulations to
toxicology evidence is normally anticipated" and that it did not
think "it was unreasonable for the State to assume that the lab
would be stipulated" in this case. The court further observed
that the matter was set for a bench trial that day, and
understood "how the State would not under these circumstances
begin it’s efforts to locate the analyst in this case." The
court found the State’s efforts to contact the chemist after it
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was informed of defendant’s jury demand constituted due
diligence.
On September 19, 2005, the trial was continued by agreement
to November 21, 2005, due to the absence of defense counsel. On
November 21, before the jury trial began, defendant filed a
motion to dismiss the charges based on a lack of due diligence by
the State in locating the chemist, in violation of his statutory
right to a speedy trial. The trial court denied the motion. At
trial, the former Illinois State Police chemist who analyzed the
recovered items testified. She said her analysis determined the
evidence seized from the defendant contained cocaine and heroin.
The defense contested the chain of custody.
DECISION
The issue is the propriety of the order granting the State a
30-day extension to locate the chemist. Defendant contends the
State did not act with due diligence to locate the chemist prior
to trial, and that it should not have presumed the defense would
stipulate to the laboratory results. Defendant contends the
trial court improperly continued the matter beyond the statutory
speedy-trial period. The State does not deny electronic home
monitoring is equivalent to incarceration, nor does it deny the
statutory speedy trial period would have run absent the trial
court’s finding of due diligence and granting of the 30-day
extension.
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A defendant has a right to a speedy trial under both the
Federal and Illinois Constitutions (U.S. Const., amends. VI, XIV;
Ill. Const. 1970, art. I, §8), as well as under Illinois statute
(725 ILCS 5/103-5 (West 2004)); however, these rights are not
precisely equivalent (People v. Staten, 159 Ill. 2d 419, 426, 639
N.E.2d 550 (1994)). In order to prove a statutory violation,
defendant need only show that despite his demand for trial he has
not been tried within the period set by statute and that he has
not caused or contributed to the delays. Staten, 159 Ill. 2d at
426. Proof of the constitutional violation, by contrast,
requires consideration of the length of the delay in trial, the
reasons for the delay, the defendant’s assertion of the speedy-
trial right, and prejudice to the defendant caused by such delay.
Staten, 159 Ill. 2d at 426. When a statutory speedy-trial
violation is alleged, "the statute operates to prevent the
constitutional issue from arising except in cases involving
prolonged delay, or novel issues." Staten, 159 Ill. 2d at 426
(quoting People v. Stuckey, 34 Ill. 2d 521, 523, 216 N.E.2d 785
(1966)). In this case, defendant’s speedy trial claim is
statutory, not constitutional.
In Illinois, every incarcerated defendant must be tried
within 120 days from the date he was taken into custody except in
circumstances not present here. 725 ILCS 5/103-5(a) (West 2004).
If he is not, the court must release him from custody and dismiss
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the charges against him. 725 ILCS 5/103-5(d) (West 2004).
The period in which defendant must be tried, however, may be
extended once by up to 60 days where the State has been unable to
obtain evidence despite its due diligence and has provided
reasonable grounds for the court to believe that it will do so at
a later date. 725 ILCS 5/103-5(c) (West 2004). The decision to
extend the speedy trial period beyond 120 days lies within the
discretion of the trial court, and we will not disturb its
determination absent a clear abuse of discretion. People v.
Richards, 81 Ill. 2d 454, 458, 410 N.E.2d 833 (1980).
I. Forfeiture of the Issue
The State contends defendant forfeited his right to assert a
speedy trial claim because he failed to raise the issue in his
post-trial motion. See People v. Enoch, 122 Ill. 2d 176, 186,
522 N.E.2d 1124 (1988) (both a trial objection and a written
post-trial motion raising the issue are required “for alleged
errors that could have been raised during trial.”)
Defendant acknowledges the omission. He contends it was not
necessary for him to raise the issue in his post-trial motion
given the numerous objections he made to the extension at trial.
Defendant also contends his claim fits within the constitutional
exception to the waiver doctrine recognized in Enoch, 122 Ill. 2d
at 190 ("when the defendant fails to comply with the statutory
requirement to file a post-trial motion, our review will be
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limited to constitutional issues which have properly been raised
at trial and which can be raised later in a post-conviction
hearing petition [citation], sufficiency of the evidence, and
plain error.")
Reviewing courts in this state have applied the waiver
doctrine in circumstances where, as here, defendant failed to
assert his speedy trial claim in a post-trial motion. See e.g.,
People v. Peco, 345 Ill. App. 3d 724, 728, 803 N.E.2d 561 (2004);
People v. Turley, 235 Ill. App. 3d 917, 919, 601 N.E.2d 305
(1992).
Several appellate court decisions have taken the position
that “waiver is a bar upon the parties and not upon the court.”
For example, see People v. Villanueva, 382 Ill. App. 3d 301, 305,
887 N.E.2d 765 (2008), quoting People v. Roberts, 299 Ill. App.
3d 926, 931, 702 N.E.2d 249 (1998). Roberts relied on the
supreme court’s statement in Wagner v. City of Chicago, 166 Ill.
2d 144, 149, 651 N.E.2d 1120 (1995). Wagner is a civil case, but
does not limit its view of waiver to civil cases. See also In re
Marriage of Sutton, 136 Ill. 2d 441, 446, 557 N.E.2d 869 (1990)
(“The rule of waiver is, of course, a limitation on the parties
and not the courts.”)
We also observe that three dissenters in a recent supreme
court decision, People v. Heider, No. 103859, slip op. at 21 (May
22, 2008), referred to the “forfeiture is a limitation on the
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parties” basis for review, used in that case by the appellate
court to reach a sentencing issue, as an “oft-misused and
misunderstood statement ***.”
Still, the Heider majority held the purpose of preserving a
claim of error was met and there was no forfeiture “where the
trial court clearly had an opportunity to review the same
essential claim that was later raised on appeal ***.” Heider,
slip op. at 14.
In this case, defendant vigorously objected to the State’s
request for a 30-day continuance in order to locate the chemist
and prepare her for trial. Defense counsel also filed a motion
to dismiss based on the State’s lack of due diligence in locating
the chemist prior to trial; the motion was denied by the trial
court. Based on the trial court’s comments in granting the
State’s motion for a continuance, we fail to see how raising the
issue in a written post-trial motion would have changed the
outcome in the trial court. See People v. Van Dyk, 40 Ill. App.
3d 275, 278, 352 N.E.2d 327 (1976) (“The purpose of the salutory
rule requiring a defendant to file a motion for a new trial which
specifies the grounds in order to preserve issues for appeal is
to allow the trial court to correct possible errors and thereby
eliminate unnecessary reviews and reversals.”)
Although we recognize defendant’s speedy trial claim is
statutorily--not constitutionally–-based, defendant’s rights
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under the statute are underpinned by his right to a speedy trial
under both the Federal and Illinois Constitutions. See People v.
Battles, 311 Ill. App. 3d 991, 997, 724 N.E.2d 997 (2000) (“The
speedy trial statute enforces a constitutional right. Therefore,
the statute *** must be liberally construed in defendant’s
favor.”) In light of the above factors, we will consider the
merits of defendant’s contention.
II. Due Diligence
The test of due diligence is whether the State began efforts
to locate its witness in sufficient time to secure her presence
before the speedy trial term expired. People v. Gray, 326 Ill.
App. 3d 906, 910, 761 N.E.2d 1237 (2001).
Here, the State admits it made no attempt to contact the
chemist until the 119th day of the 120-day trial term, the day
defendant’s trial was scheduled to begin. After it learned of
defendant’s jury trial demand that morning, the State called the
Illinois State Police Crime Laboratory and was told the chemist
who performed the analysis no longer was employed there. The
State then tried to locate the chemist through her last known
address and telephone number, but was unsuccessful. Because the
State failed to make any meaningful attempt to contact the
chemist until the 119th day defendant was in custody, its only
recourse was to request a 30-day continuance. We fail to see how
the State’s actions in attempting to contact the chemist on the
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119th of the 120-day period rise to the level of due diligence as
that term is used in section 2/103-5(c).
Black’s Law Dictionary defines diligence as “a continual
effort to accomplish something,” or “care, caution; the attention
required from a person in a given situation.” Black’s Law
Dictionary 468 (7th ed. 1999). Whatever “due diligence” means,
it cannot be defined as ignoring or doing nothing about a
statutory requirement.
The State contends it did not have to show due diligence
before the 119th day because it had no reason to believe the
chemist’s testimony was necessary until defendant demanded a jury
trial, veering from the public defender’s established custom of
stipulating to lab reports in a bench trial. Defendant, however,
was well within his rights to elect a jury trial. He was under
no obligation to waive his right to a jury trial in order to make
it easier for the State to try him within the 120-day period.
The State knew the chemist’s testimony was critical to the
presentation of its case. Rather than locating and preparing the
witness for trial during the 120-day period, however, the State
chose to take for granted that defendant would ultimately elect a
bench trial and stipulate to the chemist’s testimony. Although
defendant’s trial counsel admitted the public defender’s office
customarily stipulates to forensic reports in bench trials, the
defendant has a controlling vote on whether a stipulation would
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be entered. See People v. Campbell, 208 Ill. 2d 203, 217-18, 802
N.E.2d 1205 (2003) (“defense counsel may waive a defendant’s
right of confrontation as long as the defendant does not object
and the decision to stipulate is a matter of trial tactics and
strategy.”)
We find the State’s failure to ask defendant’s counsel
whether the defense intended to stipulate to the lab reports is
evidence of a lack of diligence on the part of the State. We
agree with the defendant’s claim that the State had no right to
rely entirely on a purported stipulation custom in bench trials.
The State refers to the defense position as “foppish idealism.”
We suggest the State would be better served by observing that a
simple and timely inquiry about willingness to stipulate is a
well-established practice and would have obviated the only issue
in this case.
The cases relied on by the State do not warrant a different
conclusion. In People v. Winfield, 113 Ill. App. 3d 818, 447
N.E.2d 1029 (1983), the State became aware 10 days before the
expiration of the 120-day period that a material witness could
not be located. The State then sent officers to her last known
address, contacted several of her acquaintances, left messages
for her at various locations where she was expected to return,
and searched the area where she usually resided and was recently
seen. The trial court granted the State’s motion for a
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continuance after the witness could not be located within the
120-day period. The defendant contended that given the witness’
criminal background, the State should have been aware she would
be difficult to locate and begun its efforts much sooner.
Rejecting the defendant’s contention, the court held the
record established that the witness had voluntarily contacted an
officer assigned to the case on several occasions over a period
of several months, leaving a telephone number she purportedly
could be contacted at each time. Winfield, 113 Ill. App. 3d at
825. Given the prior cooperation shown by the witness, the court
held the State had no reason to know she would be difficult to
locate. Winfield, 113 Ill. App. 3d at 825. The court held the
State’s efforts were sufficient to demonstrate due diligence.
Winfield, 113 Ill. App. 3d at 825.
In People v. Smith, 268 Ill. App. 3d 1008, 645 N.E.2d 384
(1994), the State discovered two of its material witnesses no
longer resided at their last known residences 53 days before the
expiration of the original 120-day term. The State then took
substantial steps to locate them, including checking with the
Illinois Department of Public Aid, the Illinois Secretary of
State, the United States Postal Service, and arrest records.
Although the witnesses were not located before the defendant’s
scheduled trial date, the court held the State exercised due
diligence in locating the witnesses within the 120-day term.
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Smith, 268 Ill. App. 3d at 1013-14. The court also held nothing
in the record indicated the State should have known that
searching for the witnesses would have been necessary. Smith,
268 Ill. App. 3d at 1014. Given the witnesses’ earlier
cooperation and the fact they both resided in or near Chicago,
the court held it was reasonable for the State to delay
contacting them until the defendant’s case was clearly in trial
posture. Smith, 268 Ill. App. 3d at 1014.
In this case, unlike Winfield and Smith, the State had
absolutely no contact–-voluntary or otherwise--with the chemist
before its attempt to locate her on the 119th day of the 120-day
term. When the State contacted the Illinois State Police Crime
Laboratory on August 22, 2005, it learned the chemist had left
the laboratory’s employment two months earlier. Defendant’s
trial date had been set since June 9, 2005.
The State’s last-minute attempt to locate the chemist was a
far cry from the 10 days before in Winfield and 53 days before in
Smith. The State’s delay in contacting the chemist until the
119th day, the day the trial was set, demonstrates a lack of
diligence.
In People v. Shannon, 34 Ill. App. 3d 185, 187-88, 340
N.E.2d 129 (1975), we said:
“We are impressed by the fact that it does
not appear that any effort whatsoever was
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made to ascertain the availability of the two
police eyewitnesses until the afternoon four
days prior to trial. *** In our opinion,
these belated efforts to locate these
essential witnesses were not sufficient to
constitute due diligence on the part of the
State. This conclusion is particularly
supported by the fact that the vacation
schedules of these two witnesses were in
existence months before defendant was
arrested.”
The State’s request on the 120th day for a section 103-5(c)
extension to conduct DNA testing was granted by the trial court
in People v. Battles, 311 Ill. App. 3d 991, 724 N.E.2d 997
(2000). The trial court’s decision was held to be an abuse of
discretion--“The State did not explain its effort [to complete
testing] because there was none.” Battles, 311 Ill. App. 3d at
1004.
In People v. Durham, 193 Ill. App. 3d 545, 550 N.E.2d 259
(1990), the State moved for and received a continuance beyond the
120-day limit because a police crime report had not been
received. Finding “the record in this case is barren of actions
or efforts on the part of the State which would support a finding
that due diligence was exercised” to obtain the report, the court
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reversed the defendant’s drug conviction. Durham, 193 Ill. App.
3d at 545. We adopt the court’s view that:
“To hold that the prosecutor in the instant
case exercised due diligence would, in fact,
abrogate the requirement of diligence in
cases where the speedy trial provision is a
factor.” Durham, 193 Ill. App. 3d at 547.
Finally, we address an issue raised by the State in its
Petition for Rehearing. The State, for the first time, contends
August 22, 2005, was not the 119th day of the statutory term
because the defendant had filed a motion to quash and suppress
evidence on April 13 and the motion was not heard until August
22.
In the trial court, as the State concedes, the prosecution
agreed it had reached the 119th day of the term on August 22.
The trial court was not asked to review that concession. In its
briefs filed in this court, the State again conceded that August
22 was the 119th day. During oral argument before this court
once again the State agreed that August 22 was the 119th day.
Illinois Supreme Court Rule 341(h)(7) is clear: "Points not
argued are waived and shall not be raised in the reply brief, in
oral argument, or on petition for rehearing." Rule 341(i)
applies 341(h)(7) to appellee briefs. We take the rule to mean
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what it says. State Board of Managers v. Wabash Loftominium, 376
Ill. App. 3d 185, 188-89, 876 N.E.2d 65 (2007).
The principal of waiver applies to the State as well as the
defendant in a criminal case. People v. Holloway, 86 Ill. 2d 78,
91, 426 N.E.2d 871 (1981). This is not simply a matter of
failure to object. The State took the position at every stage of
this case, until its Petition for Rehearing, that August 22 was
the 119th day of the term. The trial court relied on that
concession, as did we. We still do. We will not inquire into
the new issue raised by the State on a petition for rehearing,
other than to note the critical time periods were generated by
motions of the State and never were agreed to by the defense. We
also observe that an express concession during oral argument
concerning the record has been held to eliminate the issue on
appeal. Williams v. Manchester, 228 Ill. 2d 404, 424-25, 888
N.E.2d 1 (2008). We deny the State's Petition for Rehearing.
We conclude the record reflects the trial court’s grant of a
30-day continuance was an abuse of discretion. The only possible
remedy for the deprivation of defendant’s statutory right to a
speedy trial is discharge. See Shannon, 34 Ill. App. 3d at 187-
88.
CONCLUSION
We reverse the trial court’s judgment and remand the cause
with directions to enter an order discharging the defendant.
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Reversed and remanded with directions.
GARCIA, J., concurs.
JUSTICE CAHILL, dissenting:
I respectfully disagree with the majority's position that
defendant's trial objections alone preserved for review his
statutorily based speedy trial claim. The majority begins its
opinion by framing the issue: "The only issue in this case is
whether the defendant's statutory right to a speedy trial was
violated when the trial court granted the State a 30-day
extension of the 120-day trial term." (Emphasis added.) Slip
op. at 1. The majority then distinguishes between the
constitutional and statutory right to a speedy trial and
concludes that "defendant's speedy trial claim is statutory, not
constitutional." Slip op. at 5. But then, without explanation,
the majority holds that defendant's speedy trial claim is
constitutional for purposes of avoiding the waiver rule announced
in People v. Enoch, 122 Ill. 2d 176, 190, 522 N.E.2d 1124 (1988).
Our supreme court there held that "when the defendant fails
to comply with the statutory requirement to file a post-trial
motion, [the court's] review will be limited to constitutional
issues which have properly been raised at trial and which can be
raised later in a post-conviction hearing petition." (Emphasis
added.) Enoch, 122 Ill. 2d at 190. The majority maintains that
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defendant's claim, although grounded in statute, has
constitutional underpinnings and, for this reason, raises a
constitutional issue not subject to waiver. Slip op. at 8. The
majority cites People v. Battles, 311 Ill. App. 3d 991, 997, 724
N.E.2d 997 (2000), which in turn cites People v. Reimolds, 92
Ill. 2d 101, 106, 440 N.E.2d 872 (1982). Those cases acknowledge
that the speedy trial statute implements a constitutional right
and, as such, should be liberally construed in favor of the
defendant. Battles, 311 Ill. App. 3d at 997; Reimolds, 92 Ill.
2d at 106. They do not speak to whether an accused waives his
right to raise a statutorily based speedy trial claim on direct
appeal by failing to first raise the issue in a posttrial motion.
But there are cases that do.
"[I]t was long ago established that the right to discharge
granted by the [speedy trial] statute was waived if not asserted
by the defendant prior to conviction" (People v. Pearson, 88 Ill.
2d 210, 216, 430 N.E.2d 990 (1981)), or through a posttrial
motion (People v. Alcazar, 173 Ill. App. 3d 344, 354, 527 N.E.2d
325 (1988); People v. Richardson, 49 Ill. App. 3d 170, 172, 363
N.E.2d 924 (1977)). Even the constitutional right to a speedy
trial is subject to waiver. See People v. Taylor, 32 Ill. 2d
165, 168, 204 N.E.2d 734 (1965); People v. Hamby, 27 Ill. 2d 493,
497, 190 N.E.2d 289 (1963). Also, statutorily based speedy trial
claims are not constitutional in scope and, for this reason, are
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inappropriate for consideration in a postconviction proceeding.
People v. French, 46 Ill. 2d 104, 107, 262 N.E.2d 901 (1970); see
also People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511
(2004), citing 725 ILCS 5/122-1 (West 2000) (postconviction
proceedings are limited to consideration of constitutional issues
not presented at trial).
"[W]here the question concerns whether there has been a
waiver of the [speedy trial] statute, [our supreme] court has
held the case does not involve the denial of a constitutional
right, and the defendant cannot raise the issue in a petition
under the Post-Conviction Hearing Act." People v. Morris, 3 Ill.
2d 437, 442, 121 N.E.2d 810 (1954). I disagree with the
majority's conclusion to the contrary.
I am also puzzled by the majority decision to include a
reference to both the dissent and the majority opinion in People
v. Heider, No. 103859 (May 22, 2008). Slip op. at 7-8. While
Heider addressed forfeiture of an issue on appeal, the defendant
had filed a written postsentencing motion in compliance with
section 5-8-1(c) of the Unified Code of Corrections (730 ILCS
5/5-8-1(c) (West 2002)). Heider, slip op. at 11. The dispute
involved the wording of the postsentencing motion. The case has
no relevance here, where no posttrial motion was filed.
Finally, in response to the State's petition for rehearing,
the majority holds the State to the same waiver rule that it
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relaxed for defendant. The majority cites Rule 341(h)(7) (210
Ill. 2d R. 341(h)(7)) (points not argued in initial appellate
brief are waived). But a petition for rehearing is an
appropriate vehicle to bring to the reviewing court's attention
points that were originally overlooked. See 210 Ill. 2d R.
367(b). Both the parties and the court overlooked the fact that
defendant filed a motion to suppress that tolled the running of
the speedy trial statute. The fact that the parties mistakenly
believed the speedy trial statute had run cannot act to negate
what actually occurred in the trial court. It is the record, and
not the statement of that record propounded in the parties'
briefs, that binds the appellate court. County Board of School
Trustees v. Bendt, 30 Ill. App. 2d 329, 334, 174 N.E.2d 404
(1961). The record " 'imports absolute verity, and is the sole,
conclusive and unimpeachable evidence of proceedings in the lower
court.' " Bendt, 30 Ill. App. 2d at 334, quoting McGurn v.
Brotman, 25 Ill. App. 2d 294, 167 N.E.2d 12 (1960). The majority
here failed to take into consideration the impact that
defendant's motion to suppress had on his speedy trial claim
despite the clear and unequivocal law in this state that such a
motion tolls the running of the speedy trial statute. See People
v. McDonald, 168 Ill. 2d 420, 440, 660 N.E.2d 832 (1995). The
majority then compounded this error by refusing to consider,
under the guise of waiver, the State's legitimate point on
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rehearing that defendant's right to a speedy trial was not, in
fact, violated.
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