People v. Davis ( 2008 )

Filed 4/3/08 NO. 4-07-0197
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
ISIAH K. DAVIS, ) No. 06CF293
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
On May 30, 2006, the State charged Isiah K. Davis with
armed robbery against Lou Ann St. Onge (count I) (720 ILCS 5/18-2
(2006)). On November 2, 2006, after Davis had been in custody
for 157 days, the State amended the information to include a
charge of armed robbery against James Peplow (count II) (720 ILCS
5/18-2 (2006)). The armed robbery against James arose from the
same set of circumstances as the armed robbery against Lou Ann.
That same day, Davis and two codefendants went to trial on both
counts. Davis was subsequently convicted of both counts and
sentenced to two nine-year terms, to run concurrently. Davis
appeals his conviction for armed robbery against James, arguing
that his counsel was ineffective for failing to move to dismiss
count II based on a speedy-trial violation. We affirm.
I. BACKGROUND
A. Underlying Offense
The victims, James Peplow and Lou Ann St. Onge, lived
together and were raising a young child together (Lou Ann's
biological daughter). James and Lou Ann both worked at a Save-a-
Lot grocery store in Danville, Illinois. On May 26, 2006, James
dropped Lou Ann's daughter off at the babysitter's house on his
way to work. Lou Ann was already at work, and she was set to get
off of work earlier than James. At approximately 6:30 p.m., Lou
Ann's shift ended.
James and Lou Ann walked out to the parking lot to-
gether so that James could transfer Lou Ann's daughter's safety
seat from his car to her car, as Lou Ann wanted to pick up her
daughter from the babysitter's house on the way home from work.
James and Lou Ann had parked next to each other in the employee
section of the parking lot. Lou Ann sat in her car while James
started to remove the safety seat from his car. At that moment,
two men came up from behind James and demanded money.
At first, James did nothing because he was stunned and
did not immediately process what was happening. The taller of
the two men lifted his shirt and revealed a pearl-handled gun.
James gave the man who was not armed with the gun a $5 bill from
his pocket. After James gave the men the $5 bill, Lou Ann got
out of her car. Lou Ann testified that she had also seen the
gun, and was scared, but did not want anything to happen to
James. Lou Ann approached the men and said, "What's going on?"
In response, the two men demanded money from Lou Ann.
Lou Ann gave them a $1 bill. The two men searched Lou Ann's
pockets but could not find any additional money. Then, the men
searched James, taking $32 from his wallet, in the form of a $20
- 2 -
bill, a $10 bill, and two $1 bills. In total, the men took $38
from James and Lou Ann, in the form of a $20 bill, a $10 bill, a
$5 bill, and three $1 bills.
Then, a green Ford Taurus drove by the scene and the
two men jumped in the car and drove away. James took note of the
Taurus's license plate, ran inside the store, wrote the plate
number on his hand, and called the police. The police arrived in
less than five minutes. The whole episode, from the time James
and Lou Ann left the store to the time the police arrived, took
approximately 10 minutes.
Soon after, Indiana police pulled over a vehicle
matching the description of the getaway car. The Indiana police
arrested the three occupants inside the vehicle, including Davis,
who was in the backseat. The other two men were later identified
as Andrew Guice and Donald Burnett. Davis had $38 on his person
in the same denominations that were taken from James and Lou Ann.
The police did not find a gun during the search of the vehicle,
but they did find a large, pearl-handled knife.
After his arrest, the police fingerprinted Davis and
found that the fingerprints matched an "Isiah Jones," not an
"Isiah Davis." James and Lou Ann were then brought into the
police station to make identifications through a closed circuit
television. Both James and Lou Ann identified codefendant Andrew
Guice as the man with the gun. James also identified codefendant
Donald Burnett, but he was not sure whether Burnett had been the
other man on foot or whether Burnett had driven the getaway car.
- 3 -
Neither James nor Lou Ann identified Davis. At trial, James
thought Burnett had been the unarmed man on foot.
B. Procedure Impacting Speedy-Trial Requirements
On May 30, 2006, the State charged Davis with armed
robbery against Lou Ann and brought Davis into custody. Trial
was originally set for July 31, 2006. On July 31, 2006, Davis
moved to continue. The trial court granted the motion over the
State's objection. Trial was reset for September 25, 2006. On
that date, the State moved to continue and the trial court
granted the State's motion over Davis's objection. Further
proceedings were reset for October 30, 2006. On that date, the
State moved to amend the complaint to include Davis's alias,
"Isiah Jones." The parties then selected the jury. Trial was
set for November 2, 2006.
On November 2, 2006, after Davis had been in custody
for 157 days, the State again moved to amend the complaint, this
time seeking to add a second count of armed robbery regarding the
offense against James. The State noted that, for some reason, it
had originally only filed one count of armed robbery (as pertain-
ing to Lou Ann). The State was not sure why it originally did
not file another count as pertaining to James, as the crimes were
part of the same incident. The defense objected, arguing that
Davis and codefendants would be prejudiced by the addition of
count II because the jury had already been informed in the
statement of the case that there was only one count. The trial
court noted that the jury had already been informed that James
- 4 -
would be a witness and all of the jurors indicated that they were
unfamiliar with James. Therefore, the trial court did not
believe Davis would be prejudiced by the addition of count II and
allowed the State to amend. The trial court gave defense counsel
the option of continuing the trial date so that he could have
more time to prepare to defend against count II, but defense
counsel said he and his clients were ready to go to trial that
day.
Following a joint jury trial, Davis was convicted of
both counts and was sentenced as stated. This appeal followed.
II. ANALYSIS
One hundred and fifty-seven days elapsed from the time
Davis was taken into custody (May 30, 2006) until his trial began
(November 2, 2006). As pertains to count I, both parties agree
that only 101 days counted toward the speedy-trial period because
Davis's requested continuance tolled the speedy-trial clock from
July 31, 2006, to September 25, 2006. However, as pertains to
count II, Davis argues that all 157 days should be counted toward
the speedy-trial period and that his trial counsel was ineffec-
tive for not moving to dismiss count II based on a violation of
the speedy-trial statute.
Every person in custody in Illinois for an alleged
offense shall be tried by the court having jurisdiction within
120 days from the date he was taken into custody. 725 ILCS
5/103-5(a) (West 2006). Delays occasioned by the defendant do
not count toward the 120-day speedy-trial period. 725 ILCS
- 5 -
5/103-5(a) (West 2006). In support of his argument that defen-
dant was not tried as to count II within the 120-day speedy-trial
period, Davis relies on People v. Williams, 94 Ill. App. 3d 241,
248-49, 418 N.E.2d 840, 846 (1981), which first set forth the
rule regarding speedy-trial considerations on later-filed
charges. The Williams court held:
"Where new and additional charges arise
from the same facts as did the original
charges and the State had knowledge of these
facts at the commencement of the prosecution,
the time within which trial is to begin on
the new and additional charges is subject to
the same statutory limitation that is applied
to the original charges. Continuances ob-
tained in connection with the trial of the
original charges cannot be attributed to
defendants with respect to the new and addi-
tional charges because these new and addi-
tional charges were not before the court when
those continuances were obtained." (Emphasis
added.) Williams, 94 Ill. App. 3d at 248-49,
418 N.E.2d at 846.
However, the Williams rule does not apply to situations
in which the State is not required to join the additional and
original charges in a single prosecution under the principles of
compulsory joinder. People v. Gooden, 189 Ill. 2d 209, 217-18,
- 6 -
725 N.E.2d 1248, 1253 (2000) (involving charges of home invasion
and aggravated criminal sexual assault). The Gooden court
reasoned that if the Williams rule were extended to situations
where the State would not otherwise be required to join the two
charges under the compulsory-joinder statute (720 ILCS 5/3-3
(West 2006)), the speedy-trial act (725 ILCS 5/103-5 (West 2006))
could improperly compel the State to join charges. Gooden, 189
Ill. 2d at 220, 725 N.E.2d at 1254. A defendant should not be
permitted to enlarge the reach of the compulsory-joinder statute
by means of the speedy-trial act. Gooden, 189 Ill. 2d at 220,
725 N.E.2d at 1254.
The compulsory-joinder statute states that if several
offenses of the defendant are known to the prosecuting officer at
the time of commencing prosecution and are within the jurisdic-
tion of a single court, they must be prosecuted in a single
prosecution if they are based on the same act (unless the court
determines that it is in the interest of justice to try one or
more of the charges separately). 720 ILCS 5/3-3(b) (West 2006).
An "act" for purposes of section 3-3 of the Criminal Code of 1961
(720 ILCS 5/3-3(b) (West 2006)) is "'any overt or outward mani-
festation that will support a separate offense.'" People v.
Davis, 328 Ill. App. 3d 411, 414, 766 N.E.2d 277, 280 (2002),
quoting People v. Crespo, 203 Ill. 2d 335, 341, 788 N.E.2d 1117,
1120 (2001).
The purpose of section 3-3 is to preclude successive
prosecutions where more than one person was injured by a single
- 7 -
act by the accused, such as setting off an explosive. People v.
Mueller, 109 Ill. 2d 378, 386, 488 N.E.2d 523, 526 (1985). Under
the compulsory-joinder statute, whether a series of acts are
"related," or might be considered part of the same "conduct," is
irrelevant. See Mueller, 109 Ill. 2d at 385, 488 N.E.2d at 526;
see also People v. Limauge, 89 Ill. App. 2d 307, 231 N.E.2d 599
(1967) (though related, prosecutions for driving while license
revoked and for reckless homicide did not constitute same "act"
so as to require joinder). "'Section 3-3 is not intended to
cover the situation in which several offenses *** arise from a
series of acts which are closely related with respect to the
offender's single purpose or plan.<" Mueller, 109 Ill. 2d at
385-86, 488 N.E.2d at 526, quoting Ill. Ann. Stat., ch. 38, par.
3-3, Committee Comments, at 202 (Smith-Hurd 1972). In fact, the
drafters considered and rejected an earlier version of section 3-
3 which would have required a single prosecution when multiple
offenses arose from the "conduct," as opposed to the same "act."
Mueller, 109 Ill. 2d at 386, 488 N.E.2d at 526. "Conduct" may be
defined as a "series of acts." Mueller, 109 Ill. 2d at 386, 488
N.E.2d at 526.
It seems as though the Gooden court narrowed the scope
of the Williams rule. The Williams rule imposed the original
statutory limitations period to additional charges arising from
the "same facts." However, the Gooden court imposed the original
statutory limitations period to additional charges that are
required to be joined to the original charge, i.e., those arising
- 8 -
from the same "act."
To prevail on an ineffective-assistance claim, a
defendant must show that (1) counsel's performance fell below an
objective standard of reasonableness, and that, (2) but for
counsel's unprofessional errors, the result of the proceedings
would have been different. People v. Reid, 179 Ill. 2d 297, 310,
688 N.E.2d 1156, 1162 (1997), citing Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). It has
been held that trial counsel's failure to move for a speedy-trial
discharge of new and additional charges will constitute ineffec-
tive assistance where there was at least a reasonable probability
that such a motion would have been granted. See People v. Davis,
373 Ill. App. 3d 351, 354, 869 N.E.2d 339, 341 (2007); see also
People v. Callahan, 334 Ill. App. 3d 636, 641, 644-45, 778 N.E.2d
737, 742, 745 (2002).
Hence, we must determine whether there was a reasonable
probability that a motion for a speedy-trial discharge of count
II would have been granted had such a motion been made. This
issue turns on whether the armed robbery of James (count II) is
based on the same "act" as the armed robbery of Lou Ann (count
I). If, on the other hand, the two counts arose from two dis-
tinct acts, the State would not be required to prosecute the two
counts in the same prosecution pursuant to the compulsory joinder
statute, and the Williams rule upon which Davis relies would not
apply. Gooden, 189 Ill. 2d at 217-18, 725 N.E.2d at 1253; 720
ILCS 5/3-3 (West 2006).
- 9 -
What constitutes an "act" under the statute (i.e., any
overt or outward manifestation that will support a separate
offense) is not always clear-cut. For example, courts have held
that the rapid firing of successive shots from a single location
is a single "act" for purposes of the compulsory-joinder statute,
even if there are multiple victims. Davis, 328 Ill. App. 3d at
414, 766 N.E.2d at 80. However, other courts have held that
armed robberies against multiple victims, though contemporaneous
in time, may constitute separate acts. See People v. Smith, 42
Ill. App. 3d 109, 115, 355 N.E.2d 601, 606 (1976) (where defen-
dant and his accomplice walked into a barbershop and committed
armed robbery against two of the three people inside); People v.
Robinson, 41 Ill. App. 3d 526, 530-31, 354 N.E.2d 117, 121
(1976); People v. Boyce, 41 Ill. App. 3d 53, 61, 353 N.E.2d 287,
293 (1976) (in dicta, stating that the nearly simultaneous armed
robbery of two people in the same car constituted two "closely
related" acts).
Here, the perpetrators first committed an act of armed
robbery against James. Then, when Lou Ann got out of her car,
approached the defendants, and asked what was going on, the
defendants could have chosen to turn and run, or otherwise change
their course of action. Perhaps the defendants might have
realized that their actions were morally wrong and futile, or
that there were too many witnesses. Instead, the defendants
chose to commit a second act of armed robbery. Under these
circumstances, we find two different acts were committed. As
- 10 -
such, any motion to dismiss the later-filed count II on the basis
of a speedy-trial violation would not have been successful and,
therefore, Davis's ineffective-assistance claim fails.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial
court's judgment. As part of our judgment, we grant the State
its statutory assessment of $50 against defendant as costs of
this appeal.
Affirmed.
McCULLOUGH and TURNER, JJ., concur.
- 11 -