People v. Cross

2022 IL 127907IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127907)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
LATRON Y. CROSS, Appellant.
Opinion filed November 30, 2022.
CHIEF JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Anne M. Burke, Michael J. Burke, Overstreet, and Carter concurred in
the judgment and opinion.
Justice Neville dissented, with opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 This case presents an issue of whether a delay can be attributable to the defense
for purposes of a speedy trial if the defendant’s action does not result in the
postponement of a pending trial date. Defendant Latron Y. Cross was convicted of
first degree murder and sentenced to 59 years in prison. On appeal, he raised for
the first time that he was not tried within 120 days of his arrest in violation of his
statutory right to a speedy trial. Specifically, he argued that the trial court abused
its discretion when it attributed 34 days of delay to defendant due to his delayed
disclosure of his alibi defense, where his action did not alter the pending trial date,
and that trial counsel was ineffective for failing to seek dismissal of the charges
based upon the speedy-trial violation. The appellate court affirmed defendant’s
conviction, concluding that the Vermillion County circuit court did not abuse its
discretion and that defendant received effective assistance of counsel. 2021 IL App
(4th) 190114, ¶ 71. For the following reasons, we affirm the judgment of the
appellate court.
¶2 BACKGROUND
¶3 On July 7, 2017, Ollie Williams was fatally shot while riding his bicycle in
Danville, Illinois. Two days later, on July 9, 2017, defendant was charged with his
murder and remained in custody through the time of trial. Following his arrest, a
preliminary hearing was set for July 27, 2017. That interim period of 18 days was
attributed to the State for purposes of calculating defendant’s 120-day statutory
speedy-trial term.
¶4 At the preliminary hearing, the trial court found that the State had established
probable cause and ordered defendant to respond to the State’s motion for pretrial
discovery within 30 days. The State’s motion requested, inter alia, written notice
of any defenses defendant intended to assert at trial, the names and addresses of
persons defendant intended to call as witnesses, and any relevant written
statements.
¶5 Over the next year, defendant moved to continue the matter six times. The trial
court granted the motions, each time attributing the delay of the speedy-trial term
to defendant.
¶6 On July 16, 2018, the trial court conducted a pretrial hearing. Defense counsel
answered ready for trial and demanded a speedy trial. The court set a trial date of
September 24, 2018, and ruled that the 70-day period from July 16 to September
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24 would be attributable to the State for purposes of calculating the speedy-trial
term. The State acknowledged that, at that time, the speedy-trial term would run on
October 27, 2018.
¶7 On August 21, 2018, one month before the trial date and a year after the State’s
motion for discovery, defendant filed a supplemental disclosure in which he raised
an alibi defense for the first time. He identified Naomi Cross, defendant’s
grandmother, as an alibi witness and Steven Blaine, an investigator with the
Vermilion County Public Defender’s Office, as an additional witness. A report
prepared by Blaine was also attached to the filing.
¶8 The State responded to defendant’s alibi disclosure by filing a response to
defendant’s demand for a speedy trial. Therein, the State argued that the alibi would
have been known to defendant for a year, that he was appointed counsel in July
2017, that the late disclosure would require the State to conduct further
investigation, and that the defense had informed the State that additional witnesses
and statements would be forthcoming and would need to be investigated. Based
upon the change in posture of the case regarding a new defense theory and the
totality of the circumstances, the State argued that the time from July 16 to
September 24 should be a delay attributable to defendant for purposes of calculating
the speedy-trial term.
¶9 On August 24, 2018, in response to the State’s filing, the trial court conducted
a hearing, at which the State reiterated its argument. Defense counsel reminded the
court that defendant was ready for trial on July 16 and demanded a speedy trial.
Counsel did not believe there was any delay attributable to defendant arising from
the newly disclosed alibi. He noted that, because the trial date was still about one
month out, the State had adequate time to investigate.
¶ 10 The court asked defense counsel whether he would have been able to proceed
to trial without the newly disclosed evidence. Defense counsel responded that he
had been ready to proceed with trial but that “[i]t would have been a different trial.
I certainly would think this [alibi] information is valuable to me, however, on July
16th, we were ready to proceed, and we weren’t going to be proceeding with an
alibi.”
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¶ 11 After considering the arguments of the parties, the trial court determined that it
would attribute the 36-day period from July 16 to August 21 to the State but would
attribute the 34-day period from August 21—when defendant first disclosed his
alibi defense—to September 24 as delay occasioned by defendant. The court
indicated that the trial date set for September 24 remained as scheduled.
¶ 12 On September 24, 2018, the trial court inquired regarding the status of the case.
Defense counsel acknowledged that the speedy-trial term had been tolled. He
answered ready for trial and demanded a speedy trial. The State moved to continue
the case. The prosecutor indicated that she had conversations with defense counsel
about scheduling the case the week of November 5. She stated that “[i]t appears we
agree that the speedy[-trial term] would run November 29th of 2018.” She further
informed the court that she had contacted her experts, who would be available that
week, that defense counsel had tendered additional discovery, and that she had
tendered supplemental discovery to defense counsel and had informed him of the
circumstances regarding the State’s expert.
¶ 13 The trial court set a new trial date of November 6, 2018. The court noted the
State’s motion to continue over the objection of defendant, who announced his
readiness for trial, and indicated that the delay from September 24 to November 6
would be attributed to the State. Defense counsel did not object when the court set
the November 6 trial date and did not object when the State indicated that the
speedy-trial term would run on November 29, 2018.
¶ 14 Defendant’s trial began on November 6, 2018. A jury found him guilty of first
degree murder. He subsequently filed two motions for a new trial, which did not
raise a speedy-trial violation. Both motions were denied. He was sentenced to 59
years in prison.
¶ 15 On appeal, defendant contended for the first time that his statutory speedy-trial
rights were violated. He argued that the trial court abused its discretion when it
attributed the 34 days from August 21 to September 24 to defendant for purposes
of calculating the speedy-trial term and that his trial counsel was ineffective for
failing to file a motion to dismiss based upon the violation. The appellate court held
that the trial court did not abuse its discretion and that defendant received effective
assistance of counsel. 2021 IL App (4th) 190114, ¶ 71. In so holding, the court
determined that a trial date need not be moved for a delay of the speedy-trial term
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to be attributed to a defendant. Id. ¶¶ 84-89. To the extent that defendant relied on
People v. Boyd, 363 Ill. App. 3d 1027 (2006), to support his contention that there
is no delay unless a trial date is postponed, the court found that the statement of the
law in Boyd is “incorrect, overbroad, and misreads the authority upon which it
purports to rest.” 2021 IL App (4th) 190114, ¶ 104. The dissenting justice would
have found that the circuit court abused its discretion by attributing the 34 days to
defendant because defendant’s disclosure of his alibi witness did not result in a
postponement of the trial date. Id. ¶ 158 (Cavanagh, J., concurring in part and
dissenting in part).
¶ 16 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct.
1, 2021).
¶ 17 ANALYSIS
¶ 18 At issue in this case is whether the trial court abused its discretion in attributing
34 days of delay to defendant because of his late disclosure of an alibi defense, even
though the trial court did not postpone the scheduled trial date. In defendant’s view,
if a trial date has been set, a delay of the speedy-trial term can only be a delay
occasioned by defendant if the scheduled trial date was postponed because of his
actions. Under the procedural posture of this case, defendant acknowledges that he
did not properly preserve the speedy-trial issue for review but requests that we
review the purported error as either ineffective assistance of counsel for failing to
file a timely motion raising the speedy-trial violation or, alternatively, as second-
prong plain error.
¶ 19 To determine whether a defendant was denied the effective assistance of
counsel, we apply the two-pronged test developed by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this court
in People v. Albanese, 104 Ill. 2d 504, 526 (1984). To prevail on a claim of
ineffective assistance of counsel, a defendant must show both that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced defendant
such that he was deprived of a fair trial. Strickland, 466 U.S. at 687. Where there is
no lawful basis for raising a speedy-trial violation, counsel’s failure to assert such
a violation cannot establish a violation of either prong of an ineffective assistance
of counsel claim under Strickland. People v. Staake, 2017 IL 121755, ¶ 47.
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Accordingly, we first consider whether defendant’s statutory speedy-trial rights
were violated.
¶ 20 The speedy-trial statute relevant to in-custody defendants provides, in relevant
part, as follows:
“Every person in custody in this State for an alleged offense shall be tried by
the court having jurisdiction within 120 days from the date he or she was taken
into custody unless delay is occasioned by the defendant ***. Delay shall be
considered agreed to by the defendant unless he or she objects to the delay by
making a written demand for trial or an oral demand for trial on the record.” 725
ILCS 5/103-5(a) (West 2018).
Thus, this section provides “a starting point—the date custody begins, and an
ending point—120 days later.” People v. Cordell, 223 Ill. 2d 380, 390 (2006). The
120-day period in which a defendant must be tried is therefore running during that
time. The period is tolled during any time when the defendant causes, contributes
to, or otherwise agrees to a delay. People v. Woodrum, 223 Ill. 2d 286, 299 (2006).
In other words, a pretrial delay caused or contributed to by defendant or otherwise
agreed to by him is excluded from the computation of the 120-day period in which
a trial must commence.
¶ 21 In addressing speedy-trial violations, we have examined various type of actions
a defendant might take during the progression of his case that have been considered
“delay *** occasioned by the defendant,” which would be excluded from the
calculation of the 120-day speedy-trial term. See People v. Turner, 128 Ill. 2d 540,
550 (1989) (holding that, “[i]n determining whether delay is occasioned by the
defendant, the criterion is whether his acts in fact caused or contributed to the
delay”); People v. Reimolds, 92 Ill. 2d 101, 106 (1982) (same); People v. Donalson,
64 Ill. 2d 536, 541 (1976) (same). Examples of delay attributable to defendant have
included the delay resulting from the filing of a motion for a continuance (People
v. Gooding, 61 Ill. 2d 298 (1975)), the filing of a motion for severance (People v.
Grant, 68 Ill. 2d 1 (1977)), the filing of a motion for substitution of judge (People
v. Spicuzza, 57 Ill. 2d 152 (1974)), and the filing of a motion to suppress evidence
(People v. Jones, 104 Ill. 2d 268 (1984); Donalson, 64 Ill. 2d 536; see also People
v. Pettis, 2017 IL App (4th) 151006, ¶ 40 (holding that a delay resulting from the
defendant’s filing of a motion pursuant to Franks v. Delaware, 438 U.S. 154-6-
(1978), was properly attributed to the defendant)). Delay has included not only the
filing of the motion but also the time associated with processing the motion,
including time for the State to respond and for the court to hear and resolve the
issues. Jones, 104 Ill. 2d at 280.
¶ 22 In these cases, the delay caused by certain actions taken by the defendant
stopped the speedy-trial term from running, irrespective of whether the action by
the defendant caused a postponement of a date set for trial. Rather, in each instance,
the defendant caused or contributed to delay in the proceedings, the effect of which
extended the expiration of the 120-day speedy-trial term within which a trial must
commence.
¶ 23 To be sure, action by a defendant that causes or contributes to a scheduled trial
date being moved would be an example of delay occasioned by a defendant that
would extend the expiration of the 120-day speedy-trial term. Additionally, we have
explained that “[a]ny action by either party or the trial court that moves the trial
date outside of the 120-day window qualifies as a delay for purposes of [section
103-5(a)].” (Emphasis added.) Cordell, 223 Ill. 2d at 390. Nevertheless, section
103-5(a) has no such causation requirement. See 725 ILCS 5/103-5(a) (West 2018).
In Cordell, we merely addressed a situation in which the trial court caused a delay
by moving a trial date beyond the 120-day term and held that, under the second
sentence of section 103-5(a), a defendant was obligated to object to the delay of the
speedy-trial term to prevent the speedy-trial term from tolling. Cordell, 223 Ill. 2d
at 390-91. As we explained in Cordell, “[t]here is nothing in [section 103-5(a)] to
indicate that the ‘delay’ must be of a set trial date.” Id. at 390. Thus, we hold that,
under the plain language of the statute, a delay occasioned by a defendant need not
cause or contribute to the postponement of a date set for trial. Rather, any delay
occasioned by a defendant causes a postponement of the 120-day speedy-trial term.
¶ 24 To determine whether a defendant’s acts should result in tolling the 120-day
statutory period, the trial court is responsible for considering the particular facts
and circumstances of each case. People v. Ladd, 185 Ill. 2d 602, 607 (1999). On
review of the trial court’s decision, its determination as to whether a period
of delay is attributable to the defendant and how much delay to attribute is entitled
to great deference, and we will sustain the trial court’s decision absent a clear
showing that the trial court abused its discretion. People v. Mayo, 198 Ill. 2d 530,
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535 (2002); Turner, 128 Ill. 2d at 550-51. An abuse of discretion occurs only where
the trial court’s ruling is arbitrary, fanciful, or so unreasonable that no reasonable
person could take the trial court’s view. People v. Rivera, 2013 IL 112467, ¶ 37.
¶ 25 In applying these principles to the present case, we find that the trial court did
not abuse its discretion in attributing the period from August 21 to September 24 to
defendant. On July 16, defendant announced that he was ready for trial and
demanded a speedy trial. The speedy-trial term was set to end on October 27, 2018.
The State requested a continuance, and a trial date was set for September 24, 2018.
Thus, the period from July 16 to September 24 was originally attributed to the State.
However, on August 21, defendant introduced for the first time, a month before
trial, an alibi defense, changing his theory of the case. At that time, his case was no
longer in the same posture to go to trial. The State was compelled to respond to
defendant’s asserted readiness for trial, and his actions required a hearing to address
the late disclosure and its impact on the progression of the case.
¶ 26 As the record reflects, at the time defendant filed his supplemental disclosure
announcing an alibi defense, defendant had been represented by counsel for a year
and had numerous opportunities to comply with the State’s request for the alibi
information. Given that defendant was asserting he was with his grandmother at the
time of the offense and that defendant would have had this information from the
date of the offense, the trial court recognized that his disclosure was late and
prejudicial to the State.
¶ 27 Failing to timely disclose an alibi witness impacts the prosecution’s ability to
put on its case. “Notice to the prosecution of proposed alibi evidence is required
because an alibi defense is at once compelling if accepted and easy to concoct, so
the prosecution is justified in wanting an opportunity to investigate it in advance of
trial.” United States v. Ford, 683 F.3d 761, 764 (7th Cir. 2012). Therefore, the late
disclosure placed the prosecution at a substantial disadvantage in adequately
preparing for and investigating the proposed alibi testimony and its impact on the
State’s case. At a minimum, defendant’s late notice of an alibi contributed to a delay
where an investigator would have to locate and interview the witness.
¶ 28 The trial judge appropriately recognized the obvious impact that defendant’s
conduct had on the progress of the case. Her decision to attribute the period between
the belated disclosure on August 21, which changed the posture of the case weeks
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before trial, and the trial date set for September 24, during which the State would
need time to investigate the belated alibi defense, was entirely reasonable. The fact
that the ruling did not move the date set for trial is of no consequence here. The
effect of the trial court’s decision, as recognized by the parties, moved the 120-day
speedy-trial deadline from October 27, 2018, to November 29, 2018. Defendant
was tried on November 6, 2018. Accordingly, there was no speedy-trial violation,
and without a basis to raise a speedy-trial objection, defendant cannot establish
either an ineffective assistance of counsel claim (People v. Phipps, 238 Ill. 2d 54,
65 (2010)) or a plain error claim (People v. Gaines, 2020 IL 125165, ¶ 55 (where
there is no error, there can be no plain error)).
¶ 29 In reaching our conclusion, we reject defendant’s reliance on various cases he
contends illustrate error in this case. At the outset, as we explained, each case must
be considered on its own facts and circumstances. Moreover, we find defendant’s
cases do not compel a different result here.
¶ 30 For example, in Ladd, 185 Ill. 2d 602, this court considered the amount of delay
attributable to a defendant resulting from his filing of a motion to dismiss the
charges against him. The motion was filed on June 26, 1995, and was set for a
hearing on July 12, 1995, but the State failed to appear for the hearing. Id. at 605,
608. The record did not disclose why the motion was otherwise not resolved until
October 16, 1995. Id. at 609. Under the unique set of factual circumstances, this
court held it was an abuse of discretion to attribute the entire time to defendant
where the State never appeared for the hearing and the record was otherwise silent
regarding any delay caused or contributed to by the defendant. Id.¶ 31 Lastly, to the extent that defendant relies on the proposition of law in Boyd, 363
Ill. App. 3d at 1037, that “unless the trial date is postponed, there is no delay to
attribute to defendant,” we agree with the appellate court that this statement of the
law is incorrect, overbroad, and inconsistent with the plain language of section 103-
5(a) and this court’s authority. None of the cases Boyd relied on from this court,
including People v. Hall, 194 Ill. 2d 305 (2000), stand for the proposition of law
that, where a date is set for trial, a delay is only occasioned by a defendant when
that trial date is postponed. Indeed, in Hall, the delay attributed to defendant was
based on several continuances that were requested on the defendant’s own motion
and acknowledged by defense counsel. Id. at 328. We explained that delay was
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attributed to defendant because generally, for purposes of tolling the speedy-trial
period, a defendant is charged with delay caused by defense motions. Id. We
additionally explained that, where a defense attorney requests a continuance on
behalf of a defendant, the resulting delay is attributable to the defendant. Id.Furthermore, we find the statement in Boyd is contrary to our holding in Cordell
that “[t]here is nothing in [section 103-5(a)] to indicate that the ‘delay’ must be of
a set trial date.” Cordell, 223 Ill. 2d at 390. Accordingly, the statement of the law
in Boyd is incorrect, and we overrule it.
¶ 32 CONCLUSION
¶ 33 In sum, we hold that, under the plain language of the speedy-trial statute, a delay
of the 120-day speedy-trial term can be occasioned by a defendant irrespective of
whether the delay postpones a date set for trial. We further hold that the trial court
did not abuse its discretion in finding a delay of the speedy-trial term occasioned
by defendant’s late disclosure of an alibi defense, thereby foreclosing his
ineffective assistance of counsel and plain error claims. Accordingly, for the
foregoing reasons, we affirm the judgment of the appellate court, which affirmed
the judgment of the circuit court.
¶ 34 Affirmed.
¶ 35 JUSTICE NEVILLE, dissenting:
¶ 36 On July 16, 2018, Cross answered ready for trial, the State answered not ready,
and the circuit court set a trial date of September 24, 2018. The circuit court
attributed the entire 70-day delay, from July 16 to September 24, to the State. After
Cross notified the State of his alibi defense on August 21, 2018, the circuit court
reversed its order and attributed to Cross a delay of 34 days, from August 21, 2018,
to September 24, 2018, that the court had previously attributed to the State. The
speedy-trial statute only tolls the 120-day limitations period when the delay is
occasioned by the defendant. 725 ILCS 5/103-5(a) (West 2018). The circuit court’s
change in its attribution of 34 days of delay to defendant tolled the 120-day
limitations period and permitted the State to extend the date for trial. Id.- 10 -
¶ 37 The majority erroneously frames the issue as follows: “whether a delay can be
attributable to the defense for purposes of a speedy trial if the defendant’s action
does not result in the postponement of a pending trial date.” Supra ¶ 1. The
majority’s framing of the issue ignores the central fact that on July 16, 2018, the
circuit court had already attributed the delay at issue, from August 21 to September
24, to the State. This court must decide whether the circuit court abused its
discretion when it changed its July 16, 2018, attribution of the trial delay at issue
from the State to Cross. Because I find the trial court abused its discretion when it
changed its attribution of 34 days of trial delay from the State to Cross, I
respectfully dissent.
¶ 38 BACKGROUND
¶ 39 On August 21, 2018, after the trial court determined that the State occasioned
the 70-day delay of the trial from July 16 to September 24, Cross notified the State
that he would assert an alibi defense. The State asked the court to penalize Cross
by changing the attribution of the entire delay up to September 24 to the defense.
The court, over Cross’s objection, attributed 34 days of the delay, from August 21
to September 24, 2018, to Cross, even though the State had already caused the delay
for the period from July 16 to September 24, 2018.
¶ 40 When September 24, 2018, arrived, Cross answered ready for trial, and the State
sought another continuance because of scheduling problems for its experts and
supplemental discovery by both parties. The State did not mention Cross’s alibi
defense as a cause for its need for a continuance. The court allowed the further
delay and attributed it to the State. The court started the jury trial in November
2018. Defense counsel did not move to dismiss the case for violation of Cross’s
right to a speedy trial. If the court had not changed its initial attribution of the delay
for the 34-day period at issue from the State to the defense, the trial would count as
beginning well outside the 120-day statutory period for a speedy trial. See 725 ILCS
5/103-5(a) (West 2018).
¶ 41 The jury found Cross guilty of murder. The court sentenced Cross to 59 years
in prison. The appellate court affirmed the conviction. 2021 IL App (4th) 190114,
¶ 148.
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¶ 42 ANALYSIS
¶ 43 The appellate court found that Cross’s introduction of the alibi defense
“delay[ed] *** the speedy-trial term,” even though it did not delay the trial. Id. ¶ 82.
The appellate court admitted that its conclusion conflicted with the result reached
in People v. Boyd, 363 Ill. App. 3d 1027 (2006). The Boyd court held, “unless the
trial date is postponed, there is no delay to attribute to defendant.” Id. at 1037. The
appellate court here held the circuit court could attribute a delay occasioned by the
State to defendant even when the circuit court had already set a trial date and the
defendant’s acts did not alter the trial date. 2021 IL App (4th) 190114, ¶ 89.
¶ 44 The State’s actions on July 16 already caused the delay from August 21 to
September 24. Cross’s later actions, giving the State notice of his alibi defense, did
nothing to alter or increase the delay the State had already caused. I agree with
Justice Cavanagh’s dissent in this case. He correctly points out the majority’s
distinction between a delay in the speedy-trial term and a delay of the trial makes
no sense. Id. ¶¶ 154-56 (Cavanagh, J., concurring in part and dissenting in part). As
this court said in People v. Cordell, 223 Ill. 2d 380, 390 (2006), a delay is “[a]ny
action by either party or the trial court that moves the trial date outside of [the] 120-
day window.” Because he gave his notice of alibi within the 70-day period of delay
the circuit court had already attributed to the State, and because his notice of alibi
did not move the trial date outside the 120-day window, the circuit court abused its
discretion when it changed from the State to Cross its attribution of 34 of the 70
days of delay caused by the State. Like Justice Cavanagh, I would find defense
counsel provided ineffective assistance by failing to make a motion to dismiss the
case before the trial began in order to preserve Cross’s speedy-trial issue for
appellate review. See 2021 IL App (4th) 190114, ¶ 162; see People v. Alcazar, 173
Ill. App. 3d 344, 354 (1988) (speedy-trial issue forfeited by failure to make a
pretrial motion for discharge).
¶ 45 I note that none of the cases the majority cites involves a change in the
attribution of a delay from one party to the other. See People v. Turner, 128 Ill. 2d
540, 550 (1989) (no change by circuit court in its initial assessment of causes for
delays); People v. Reimolds, 92 Ill. 2d 101, 106 (1982) (same); People v. Jones,
104 Ill. 2d 268 (1984) (same). Because these cases do not involve a change in the
attribution of a delay from the State to the defendant, they do not support the
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majority’s decision.
¶ 46 CONCLUSION
¶ 47 The speedy-trial statute provides that every person in custody in this state for
an alleged offense shall be tried within 120 days from the date the accused was
taken into custody unless delay is occasioned by the accused. See 725 ILCS 5/103-
5(a) (West 2018). Section 103-5 implements the constitutional right to a speedy
trial. People v. Gooden, 189 Ill. 2d 209, 217 (2000) (citing Reimolds, 92 Ill. 2d
101). Therefore, because the 120-day speedy-trial statute is only tolled when the
delay is occasioned by the defendant, the circuit court abused its discretion when it
attributed to Cross a delay that the court had previously attributed to the State.
Accordingly, I dissent.
¶ 48 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
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