990 N.E.2d 215 (Ill. 2013), 113475, People v. Martinez

Docket Nº:113475.
Citation:990 N.E.2d 215, 371 Ill.Dec. 315, 2013 IL 113475
Opinion Judge:FREEMAN, Justice.
Party Name:The PEOPLE of the State of Illinois, Appellee, v. Esteban MARTINEZ, Appellant.
Attorney:Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, and Alan D. Goldberg, Deputy Defenders, and Darren E. Miller, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant. Lisa Madigan, Attorney General, of Springfield, and John A. Barsant...
Judge Panel:Chief Justice KILBRIDE and Justices THOMAS, GARMAN, KARMEIER, and THEIS concurred in the judgment and opinion. Justice BURKE dissenting, with opinion.
Case Date:April 18, 2013
Court:Supreme Court of Illinois

Page 215

990 N.E.2d 215 (Ill. 2013)

371 Ill.Dec. 315, 2013 IL 113475

The PEOPLE of the State of Illinois, Appellee,


Esteban MARTINEZ, Appellant.

No. 113475.

Supreme Court of Illinois.

April 18, 2013

Rehearing Denied May 28, 2013.

Page 216

Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, and Alan D. Goldberg, Deputy Defenders, and Darren E. Miller, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.

Lisa Madigan, Attorney General, of Springfield, and John A. Barsanti, State's Attorney, of Geneva (Michael A. Scodro, Solicitor General, and Michael M. Glick and Karl R. Triebel, Assistant Attorneys General, of Chicago, of counsel), for the People.


FREEMAN, Justice.

[371 Ill.Dec. 316] ¶ 1 This appeal presents the sole issue of whether the State may appeal from an order of the circuit court of Kane County denying its motion to continue trial and directing a verdict in favor of defendant, Esteban Martinez. The appellate court answered this question in the affirmative. For the reasons that follow, we affirm the judgment of the appellate court.


¶ 3 On August 9, 2006, defendant was indicted for committing aggravated battery (720 ILCS 5/12-4(a) (West 2010)) and mob action (720 ILCS 5/25-1(a)(1) (West 2010)) against Avery Binion and Demarco Scott. Defendant was arraigned on November 9, 2006.

¶ 4 The record reflects that between the time of arraignment in November 2006 and the date of defendant's trial in May 2010, a series of continuance motions was filed by both defendant and the State for various reasons.1 The instant appeal revolves around occurrences that took place on defendant's trial date of May 17, 2010. At 8:30 a.m., defendant's case was called [371 Ill.Dec. 317]

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for jury trial. At that time, the following colloquy occurred between the court, the prosecutor and defense counsel:

" THE COURT: This cause is set for jury trial this morning. It is 8:30, the time in which we are scheduled to start.

[The Prosecutor]: Yes, your Honor. At this time the State is not ready. We would be asking for a continuance even just for a few moments, or if we could have just a little bit longer to see if our witnesses are arriving. They are not here yet. I am hopeful that they will be here today.

THE COURT: Well, here's what I can do for you. * * * I don't wish to wait all morning long for these people to stroll in, but I will allow us to get started, but I won't swear the panels until I have a whole jury. How is that?

[The Prosecutor]: Yes, your honor. If we could not swear them, and before swearing them if I could have a momentary recess.

THE COURT: What I'll do is we'll pick a panel, send them back, pick the next panel, send them back, pick the last panel, send them back, pick your alternate or alternates, send them back. I'll give you ten minutes, bring them out and swear them in or move to dismiss your case if you wish.

[The Prosecutor]: Thank you, your honor.

[Defense Counsel]: Judge, for the record, I am objecting, I'm asking for a continuance. My client is not present yet. I certainly would ask for a short period of time if my continuance is not granted for him to be present before selecting the jury due to the prejudice that will occur even if he arrives late. That's my request, Judge.

THE COURT: Motion denied. As soon as the jury is up, we're going to start." 2

¶ 5 After this exchange, the parties proceeded to select a jury. Upon conclusion of that process, the following exchange occurred:

" THE COURT: Counselors, I'm going to call all the cases that I had scheduled on my docket, which will give you a little extra time. Have your witnesses arrived?

[The Prosecutor]: No, your Honor, and the State does have a motion to continue that we would like to file with you.

THE COURT: Yes. Come on forward. All right. The People have filed a motion to continue.[3]

[The Prosecutor]: Your Honor, it is now 10:06. We have not seen the victim in this case, Demarco Scott, or another victim, Avery Binion, both witnesses. We are unable to proceed without them, and we would be asking for a continuance.

THE COURT: Have you sent the police to knock on their door?

[The Prosecutor]: I believe we've been checking on that and unable to locate them as of now. They also have [371 Ill.Dec. 318]

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cases that are up before your Honor this morning.

THE COURT: Yes, they have. And I will call People versus Avery Binion, Jr., 10 CC 20 * * * [and] People verses Demarco Scott, 10 CC 19. You have service on both these gentlemen?

[The Prosecutor]: Mr. Scott, I believe, was served some time ago. They both did appear last week in court, were given court orders to appear today.

THE COURT: Okay. Anything further you would like to say on your motion to continue?

[The Prosecutor]: No, your Honor.

THE COURT: Defense?

[Defense Counsel]: Judge, we certainly are objecting to any continuance[.] * * *

THE COURT: I will make these findings: The case before the court began on July 7, 2006. In two months we will then be embarking upon half a decade of a pending Class 3 felony. Avery Binion, Jr., and Demarco S[cott] are well known in Elgin, both are convicted felons. One would believe that the Elgin Police Department would know their whereabouts. They were ordered to be in court today. The Court will issue body writs for both of these gentlemen.

In addition, the State's list of witnesses indicates twelve witnesses. Excluding Mr. Scott and Mr. Binion, that's ten witnesses. The Court would anticipate that it would take every bit of today and most of tomorrow to get through ten witnesses. By then the People may have had a chance to execute the arrest warrant body writs for these two gentlemen.

The Court will deny the motion for continuance. I will swear the jury in 15, 20 minutes. Perhaps you might want to send the police out to find these two gentlemen."

¶ 6 The court then took a brief recess. When the proceedings resumed, the following exchange took place:

" THE COURT: Shall I bring the jury in to swear them in or would a continuance to 1:30 be of any help?

[The Prosecutor]: I'm not sure if it would be helpful or not. Obviously, the State would like the continuance to see if we can get our witnesses here.

THE COURT: My concern is will this be a further waste of time and that you're not going to get any cooperation out of these two witnesses?

[The Prosecutor]: Their whereabouts are unknown. We have had our officers look into it, and their whereabouts at this time are unknown. I do not know.

THE COURT: Okay. So you don't have any knowledge of where they are, so 1:00 would be a further waste of time as far as getting this matter—

[The Prosecutor]: As far as the officers being able to locate them, yes. The officers are unable to locate them. However, if they appeared on their own will between now—

THE COURT: And they haven't. It's a quarter to eleven and they have not appeared on their own will, so I'm going to bring the jury in now to swear them.

[The Prosecutor]: Okay. Your Honor, may I approach briefly?


[The Prosecutor]: Your Honor, just so your honor is aware, I know that it's the process to bring them in and swear them in; however, the State will not be participating in the trial. I wanted to let you know that.

THE COURT: Very well. We'll see how that works. [The Prosecutor]: Yes, your Honor."

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[371 Ill.Dec. 319] ¶ 7 According to the report of proceedings, " the jurors were duly sworn by the clerk." The court then provided the jurors with general, preliminary instructions. Thereafter, the court indicated to the State that it could proceed in presenting its case in chief. The following exchange then occurred:

" [The Prosecutor]: Your Honor, respectfully, the State is not participating in this case.

THE COURT: Defense?

[Defense Counsel]: Judge, we would waive opening statement.

THE COURT: The People may call their first witness.

[The Prosecutor]: Respectfully, your Honor, the State is not participating in this matter.

THE COURT: Does the defense wish to be heard? [Defense Counsel]: I do, Judge.

THE COURT: Ladies and Gentlemen, we'll take a ten-minute break."

¶ 8 Upon the jurors leaving the courtroom, the following exchange occurred:

" [Defense Counsel]: Judge, the jury has been sworn. The State has not presented any evidence. I believe they've indicated their intention not to present any evidence or witnesses.

Based on that, Judge, I would ask the Court to enter directed findings of not guilty to both counts, aggravated battery and mob action.

THE COURT: Do the People wish to reply?

[The Prosecutor]: No, your Honor. Respectfully, the State is not participating.

THE COURT: The Court will grant a motion for a directed finding and dismiss the charges."

¶ 9 The jury was then called back into the courtroom. The court stated:

" Ladies and gentlemen of the jury, the State has chosen not to participate in this case. They have chosen to call no witnesses to testify. As a result, the Court has directed a verdict in favor of the defendant. The case is dismissed against the defendant."

The court then entered a written order stating that the " matter is dismissed."

¶ 10 The State thereafter filed a certificate of impairment and a notice of appeal.

¶ 11 In the appellate court, the State argued that the circuit court abused its discretion in refusing to grant its motion for continuance on the day of trial. Defendant countered that the appellate court lacked jurisdiction over the State's appeal because defendant had been acquitted of the charges. In the alternative, defendant contended that the circuit court correctly denied the State's continuance...

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