People v. Gay ( 2007 )

NO. 4-06-0010 Filed 12/28/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
ANTHONY GAY, ) No. 04CF13
Defendant-Appellant. )
) Honorable
) Robert M. Travers,
) Judge Presiding.
______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In January 2004, the State charged defendant, Anthony
Gay, with two counts of aggravated battery (720 ILCS 5/12-4(b)(6)
(West 2000)). On March 3, 2004, defendant filed a speedy-trial
demand. After a November 2005 trial, a jury found defendant
guilty of aggravated battery. Defendant filed two posttrial
motions. At a joint December 2005 hearing, the trial court
denied defendant's motions and sentenced him to 6 years' impris-
onment to run consecutive to his sentences in 12 other cases.
Defendant appeals, contending (1) his speedy-trial
right was violated and (2) the trial court erred by failing to
hold an in camera questioning of two jurors on the names of their
friends who were correctional officers. We affirm.
I. BACKGROUND
Defendant was first sentenced to the Department of
Corrections (DOC) for seven years on a 1994 robbery conviction.
Since being imprisoned, defendant had accrued numerous
aggravated-battery convictions. In this case, case No. 04-CF-13
(case 13), the State charged defendant with aggravated battery on
January 20, 2004, for a January 23, 2001, incident, in which
defendant struck a correctional officer. When defendant was
charged in this case, he had 10 other pending aggravated-battery
cases in Livingston County, case Nos. 03-CF-59 (case 59), 03-CF-
60 (case 60), 03-CF-61 (case 61), 03-CF-62 (case 62), 03-CF-146
(case 146), 03-CF-172 (case 172), 03-CF-269 (case 269), 03-CF-298
(case 298), 03-CF-299 (case 299), and 03-CF-318 (case 318).
On March 3, 2004, pursuant to the intrastate detainers
statute (730 ILCS 5/3-8-10 (West 2004)), defendant made a pro se
demand for a speedy trial in cases 146, 172, 269, 298, 299, 318,
and 13. We note that, on July 1, 2003, defendant had made a
speedy-trial demand in cases 59, 60, 61, 62, and 146. On April
28, 2004, the trial court held a pretrial hearing on defendant's
pending cases, including this one. At that hearing, defendant's
fitness was questioned, and the court ordered a fitness examina-
tion in this case, the 10 original pending cases, and 2 newly
acquired cases, Nos. 04-CF-24 (case 24) and 04-CF-63 (case 63).
On May 26, 2004, the court entered a written order for an exami-
nation to determine defendant's fitness.
On January 12, 2005, Judge Harold Frobish entered a
case-management order due to the retirement of Judge Charles
Frank, who had presided over 21 cases involving defendant. The
order showed that, due to the unresolved issue of defendant's
fitness, sentencing remained pending in cases 60, 61, and 62, and
the other 10 cases, including this one, were still awaiting
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trial.
On February 2, 2005, in 13 cases, including this one,
defense counsel filed a motion for psychiatric examination, which
the trial court granted. After a March 16, 2005, fitness hear-
ing, the court found defendant fit to proceed on his pending
cases, and defendant discharged his attorney. At the hearing,
the court also set for June 8, 2005, a joint sentencing and
pretrial hearing on defendant's pending cases. On March 28,
2005, defendant filed a pro se motion for substitution of the
judge in all of his pending cases, which the court granted that
day and kept June 8, 2005, as the next hearing date. On April 7,
2005, defendant filed another motion to substitute the judge.
Three months later, the court heard the substitution motion and
denied it. The court set a hearing on all pending matters for
July 22, 2005.
On July 22, 2005, the trial court sentenced defendant
in cases 60, 61, and 62. On August 30, 2005, the court commenced
the trial in case 172. On November 1, 2005, the State announced
ready for trial in this case. At defendant's request, the court
set the trial for November 7, 2005. On November 7, 2005, the
court commenced defendant's trial in this case.
During voir dire, jurors Rients and Gibson indicated
they had friends that worked at the Pontiac Correctional Center
(Pontiac). When the trial court asked if the jurors would reveal
their friends' names, Gibson did not respond, and Rients declined
to disclose any names. Both jurors did indicate their friends
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were correctional officers. Defendant declared he wanted to know
the friends' names. The court asked the jurors if they knew
whether their friends had been involved in this particular
complaint or in the investigation of this type of thing, and the
jurors replied they did not really discuss it with them. The
court further asked the jurors if they were concerned about some
type of retaliation or problem against their friends if they sat
as jurors in this case, and both jurors responded in the nega-
tive. The court concluded defendant could ask about specific
names of people who might be a problem in this case but it would
not make the jurors reveal their friends' names. Defendant did
not respond, and the court had all of the potential jurors
removed from the courtroom.
Outside the jurors' presence, defendant indicated he
needed to know the friends' names because he had been accused in
21 cases and had 12 trials and naming 50 people would be too
difficult. Defendant needed to know the friends' names so he
could determine if they had been involved in or investigated any
of his cases. Defendant asked the two jurors to be excused for
cause, and the trial court denied his request. The jurors were
then returned to the courtroom, and defendant was allowed to
question them.
Defendant asked Rients and Gibson if the fact they
would not reveal their friends' names meant they thought he was
guilty, and they replied in the negative. Defendant then asked
the pair why they did not want to reveal their friends' names,
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and Rients replied because he did not think there was any reason
to bring their names into this case. At defendant's request, the
court read the names of the potential witnesses in this case, and
Rients and Gibson indicated they did not know any of those
people. The court also asked whether the fact their friends'
worked at Pontiac would affect their ability to be fair and
impartial, and the jurors responded in the negative. Defendant
then asked how long their friends had worked at DOC. Rients
responded he did not know, and Gibson said at least five years.
Both jurors indicated that, if the evidence showed defendant did
not commit the crime for which he was accused, they could find
him not guilty. Both jurors also indicated they were not worried
about their friends taunting them if the jury found defendant not
guilty.
After defendant concluded his questioning of Rients and
Gibson, he again asked they be excused for cause, and the court
denied his request. We note defendant had already exhausted his
peremptory challenges and did not request any additional ones.
The State accepted Rients and Gibson as jurors, and they were two
of the jurors that heard defendant's case.
At the conclusion of the trial, the jury found defen-
dant guilty as charged. On November 22, 2005, defendant filed a
motion for an arrest of judgment, challenging the wording of the
State's charges against him. He also filed a motion for a new
trial, asserting, inter alia, the trial court should have allowed
defendant to obtain the names of Rients's and Gibson's
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correctional-officer friends or excused them for cause. In
December 2005, the court held a hearing on defendant's motions
and sentencing. The court denied the motions and sentenced
defendant as stated. In addressing defendant's posttrial argu-
ment about jurors Rients and Gibson, the court noted two in-
stances in other cases were defendant had written letters to
jurors after the verdict. Thus, the court felt good reason for
caution existed. This appeal followed.
II. ANALYSIS
A. Speedy Trial
Defendant first asserts he was denied his speedy-trial
right because he was not brought to trial in case 172 in the
relevant speedy-trial period, which renders all of the other
cases included in his speedy-trial demand also untimely. The
State contends (1) this issue is not yet ripe because the appeal
in case 172 has not been decided, (2) defendant has forfeited
this issue, and (3) notwithstanding forfeiture, defendant's
speedy-trial right was not violated because he was tried within
160 days from the date the court sentenced him in cases 60, 61,
and 62. Defendant replied cases 60, 61, and 62 were not listed
in his March 2004 speedy-trial demand and thus cannot be consid-
ered in determining the speedy-trial period in this case.
1. Ripeness
The State first contends this issue is not ripe for
review because defendant's entire argument rests on this court's
decision on the appeal in case 172, which had yet to be decided.
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However, since the parties have filed their briefs, this court
has decided defendant's appeal in case 172. See People v. Gay,
No. 4-05-0915 (November 6, 2007), ___ Ill. App. 3d ___, ___
N.E.2d ____. Accordingly, defendant's argument is ripe for
review.
2. Forfeiture
The State also alleges defendant has forfeited his
speedy-trial challenge by failing (1) to invoke the intrastate
detainers statute, (2) to apply for discharge prior to his
conviction, and (3) to raise the speedy-trial issue in his
posttrial motion.
The State is correct (1) the intrastate detainers
statute applies to defendant since he was incarcerated in DOC
while his charges were pending (see 730 ILCS 5/3-8-10 (West
2004)) and (2) defendant was required to make his speedy-trial
demand in accordance with that statute as a precondition to the
running of the speedy-trial period (People v. Staten, 159 Ill. 2d
419, 428-29, 639 N.E.2d 550, 555 (1994)). However, it is incor-
rect the defendant failed to do that. The record shows defendant
was in DOC when he filed his March 2004 speedy-trial demand, and
he specifically indicated in the written demand that it was
pursuant to the intrastate detainers statute. Accordingly, we
find defendant properly invoked his speedy-trial right under the
intrastate detainers statute.
Further, as we stated in defendant's appeal in case
172, a speedy trial is a substantial, fundamental right, thus
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defendant's claim is reviewable under the plain-error doctrine
(134 Ill. 2d R. 615(a)) despite his failure to raise the issue in
the trial court. Gay, slip op. at 6, ___ Ill. App. 3d at ___,
___ N.E.2d at ____. Thus, we will review defendant's claim.
3. Merits
The intrastate detainers statute provides for the
application of subsections (b), ©), and (e) of section 103-5 of
the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS
5/103-5(b), ©), (e) (West 2004)). 730 ILCS 5/3-8-10 (West 2004).
Section 103-5(b) of the Procedure Code (725 ILCS 5/103-5(b) (West
2004)) requires an inmate to be tried within 160 days of the
defendant's speedy-trial demand. Section 103-5(e) of the Proce-
dure Code (725 ILCS 5/103-5(e) (West 2004)) provides, in perti-
nent part, the following:
"If a person *** simultaneously demands
trial upon more than one charge pending
against him in the same county, he shall be
tried *** upon at least one such charge
before expiration relative to any of such
pending charges of the period prescribed by
subsections (a) and (b) of this [s]ection
[(725 ILCS 5/103-5(a), (b) (West 2004))].
Such person shall be tried upon all of the
remaining charges thus pending within 160
days from the date on which judgment relative
to the first charge thus prosecuted is
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rendered ***."
Thus, when a defendant makes simultaneous speedy-trial demands on
multiple pending charges, section 103-5(e) tolls the speedy-trial
period for all but one of the charges until a judgment is
rendered on the first charge. A judgment is rendered on a charge
when the trial court has sentenced the defendant on that charge.
People v. Ike, 10 Ill. App. 3d 933, 933-34, 295 N.E.2d 250, 251
(1973).
In Gay, slip op. at 8-9, ___ Ill. App. 3d at ___, ___
N.E.2d at ___, this court concluded a judgment was rendered on
defendant's first charge for purposes of section 103-5(e) on July
22, 2005, when the trial court sentenced defendant in cases 60,
61, and 62. In so concluding, this court rejected defendant's
argument that cases 60, 61, and 62 should not be considered in
determining the speedy-trial period because defendant did not
include them in his March 2004 speedy-trial demand. See Gay,
slip op. at 9-10, ___ Ill. App. 3d at ___, ___ N.E.2d at ___.
Thus, under section 103-5(e) of the Procedure Code (725 ILCS
5/103-5(e) (West 2004)), defendant had to be tried in this case
within 160 days after July 22, 2005.
Here, defendant's trial commenced on November 7, 2005,
which was 108 days after July 22, 2005. Moreover, some of the
delay between July 2005 and November 2005 was attributable to
defendant. Accordingly, we find defendant was tried well within
the applicable speedy-trial period, and thus no violation
occurred.
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B. Questioning of Jurors
Defendant also asserts the trial court erred by failing
to hold an in camera questioning of jurors Rients and Gibson
about the names of their friends who were correctional officers
at Pontiac.
A defendant's right to a jury trial mandates a fair
trial by a panel of impartial jurors. People v. Gregg, 315 Ill.
App. 3d 59, 65, 732 N.E.2d 1152, 1157 (2000). Voir dire's
purpose is "to assure the selection of an impartial panel of
jurors free from either bias or prejudice." People v. Williams,
164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). The trial court
possesses the primary responsibility for both initiating and
conducting the voir dire examination, and the manner and scope of
that examination lies within that court's discretion. Williams,
164 Ill. 2d at 16, 645 N.E.2d at 850. Thus, defendant's argument
on appeal asserting the court should have further questioned two
jurors is a challenge to the trial court's discretion, not a
question of law as defendant contends.
This court will only find an abuse of discretion when,
after reviewing the record, we find the court's conduct "thwarted
the selection of an impartial jury." Williams, 164 Ill. 2d at
16, 645 N.E.2d at 850. In evaluating a court's exercise of
discretion during the voir dire, we examine "whether the
questions posed and the procedures employed have created
reasonable assurance that prejudice would be discovered if
present." People v. Sanders, 143 Ill. App. 3d 402, 405, 493
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N.E.2d 1, 3 (1986). "Reasonable limitations on voir dire do not
deprive a litigant of his right to an impartial jury." People v.
Tenney, 347 Ill. App. 3d 359, 368, 807 N.E.2d 705, 714 (2004).
Moreover, voir dire questions should confirm a prospective
juror's ability to set aside feelings of bias and decide the case
on the evidence presented. Tenney, 347 Ill. App. 3d at 368, 807
N.E.2d at 714.
We disagree with defendant the trial court needed to
obtain the names of Rients's and Gibson's friends who were
correctional officers to reasonably assure the discovery of any
prejudice. Here, the jurors in question both denied knowing
defendant and any of the witnesses in this case. They both
denied their relationship with correctional officers would cause
them to favor one side or the other and indicated they could be
fair and impartial. When asked if their friends had been
involved in bringing the complaint against defendant or involved
in that type of investigation, both jurors indicated they did not
really discuss those things with them. Moreover, Gibson denied
ever hearing stories about Pontiac, and Rients indicated he did
not discuss DOC business with his friends. Both jurors indicated
they neither feared retaliation against their friends nor worried
about their friends taunting them if the jury found defendant not
guilty.
Since the two jurors stated they had not heard about
any incidents at Pontiac and did not know defendant or any of the
witnesses in this case, one can safely assume that, if Rients's
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and Gibson's correctional-officer friends had been involved with
defendant in another incident, Rients and Gibson were unaware of
it. Defendant fails to argue how he could possibly be prejudiced
by the jurors' friends' involvement in an incident with him if
the jurors were unaware of such an incident. We see no potential
prejudice. Accordingly, no further questioning was warranted on
the issue of Rients's and Gibson's correctional-officer friends
to assure the discovery of any prejudice. Thus, the trial court
did not abuse its discretion by failing to question the jurors in
camera about the names of their correctional-officer friends.
III. CONCLUSION
For the reasons stated, we affirm defendant's
conviction and sentence. As part of our judgment, we grant the
State's request that defendant be assessed $50 as costs for this
appeal. Affirmed.
COOK and STEIGMANN, JJ., concur.
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