People v. Colson

• Decision Date: 17 June 2003
• Docket Number: No. 4-01-0439.,4-01-0439.
• Citation: 791 N.E.2d 650,274 Ill.Dec. 558,339 Ill. App. 3d 1039
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny L. COLSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

791 N.E.2d 650

339 Ill. App.3d 1039

274 Ill.Dec. 558

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Johnny L. COLSON, Defendant-Appellant.

No. 4-01-0439.

Appellate Court of Illinois, Fourth District.

June 17, 2003.

Daniel D. Yuhas, Deputy Defender (Court-appointed), Office of State Appellate Defender, Springfield (Matthew J. Maurer, of counsel), for Johnny L. Colson.

John C. Piland, Champaign County State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Kathy Shepard, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for People.

Justice COOKdelivered the opinion of the court:

Defendant, Johnny L. Colson, was convicted by a jury of committing the offense of aggravated criminal sexual assault (720 ILCS 5/12-14(West 2000)) and sentenced to 30 years in prison.Defendant appeals, arguing that his speedy-trial rights were violated.See725 ILCS 5/103-5(West 2000).We affirm.

Defendant was arrested on November 27, 2000.On that date, defendant had allegedly forced his ex-girlfriend into his car and then taken her to a secluded location, where he battered and raped her.Defendant did not make bond and remained in custody from the time of his arrest until his trial.

The State brought defendant to trial on April 12, 2001, after 135 days of defendant being in custody.Pursuant to section 103-5 of the Code of Criminal Procedure of 1963(speedy-trial statute), a defendant who remains in custody, as this defendant did, must be brought to trial within 120 days.725 ILCS 5/103-5(a)(West 2000).When the defendant is in custody, no demand is required to begin the running of the 120 day term.People v. Johnson,323 Ill.App.3d 284, 288, 256 Ill.Dec. 231, 751 N.E.2d 621, 625(2001).If the defendant in custody is not brought to trial within 120-days, then the defendant must be discharged from custody.725 ILCS 5/103-5(d)(West 2000).

The speedy-trial statute provides exceptions that suspend the running of the 120-day term, thereby allowing a defendant in custody to be brought to trial beyond 120 days.One exception is when the defendant himself is responsible for the delay.See725 ILCS 5/103-5(f)(West 2000).Another exception allows the State to move for a continuance for up to an additional 120 days:

"[i]f the court determines that the State has exercised without success due diligence to obtain results of DNA testing that is material to the case and that there are reasonable grounds to believe that such results may be obtained at a later day * * *."725 ILCS 5/103-5(c)(West 2000).

In this case, the State asked for, and was granted, a continuance pursuant to section 103-5(c) to obtain DNA (deoxyribonucleic acid) test results.The grant of a section 103-5(c) continuance extends the 120-day speedy-trial term to a maximum of 240 days.The State brought defendant to trial in 135 days, within the 240-day limit.Defendant argues on appeal that the trial court abused its discretion in granting the continuance because the State made no showing of due diligence as required by the speedy-trial statute.The State argues that defendant is himself responsible for 26 days of the delay because he requested a continuance, meaning that for purposes of the speedy-trial statute only 109 days accrued and no violation of the statute occurred.The State also argues that even if defendant was not responsible for any delay in bringing the case to trial, the continuance for DNA testing was properly granted.

We begin our analysis by addressing the State's argument that defendant is himself responsible for 26 days of delay because he asked for a continuance.This requires an extensive examination of the proceedings in the trial court regarding the alleged request for continuance.

The pretrial was initially set for January 24, 2001.The proceedings at the January 24, 2001, hearing follow in their entirety:

"[THE COURT]: 2106, Johnny L. Colson.

[MR. BULLOCK (defendant's counsel)]: Your Honor, I believe that should be set for motions tomorrow.

[THE COURT]: Motions tomorrow, 9:30, in F.Defendant's in custody."

The docket entry for the January 24, 2001, hearing states as follows:

"Appearance of the State's Attorney.Suggestion that the [d]efendant is in custody.Motion by [d]efendant for continuance.Motion allotted for hearing 1/25/2001 at 9:30 AM in Courtroom F."

On January 25, 2001, Assistant State's Attorney Elizabeth Dobson filed a written motion for continuance to obtain DNA evidence pursuant to section 103-5(c).The motion contained the following allegations:

"1.The defendant in this case is charged with [a]ggravated [c]riminal [s]exual [a]ssault (class X felony) and has been in custody since November 27, 2000.

2.The defense has indicated a request that the case be continued until the February 21, 2001[,] pretrial, on the defendant's motion.

3.The People have no objection to that motion and further request, on the State's motion, that the cause be continued until the March 28, 2001[,] pretrial.The alleged offense occurred in a vehicle and certain items of evidence from the vehicle, as well as samples from the victim and standards from the defendant have been forwarded to the Illinois State Police Crime Laboratory in Springfield, Illinois[,] for DNA analysis.The State's continuance is requested pursuant to 725 ILCS 5/103-5(c)."

The affidavit attached to the motion contained similar averments.

A short hearing was held on January 25, 2001, where the following exchange occurred:

"[MR. KENNEDY (prosecutor)]: Your Honor, this is Ms. Dobson's motion to continue and affidavit.Ms. Dobson's request in this case is that, since there is lab work, there is DNA work being done, that she is asking in accord with her motion, that the continuance be until March 28th of 2001 and then for the trial setting in the April trial term.

[MR. BULLOCK]: I would object.

[THE COURT]: All right.It seems to me that this is a file that we don't want any disarray on.I prefer to have a hearing on the motion."(Emphasis added.)

The trial court set the hearing for the next morning on January 26, 2001, when Assistant State's Attorney Dobson would be available.At the January 26, 2001, hearing, the following exchange occurred:

"[MS. DOBSON]: I am moving to continue, Your Honor, until the April trial term in this matter.I have also discussed with counsel the fact that I am going to be unavailable to try cases in the month of March, as I will be involved in a case being tried out of county.With regard to [defendant's] matter, the alleged incident occurred in a vehicle.Samples were taken of what appeared to be hair and body fluid from the vehicle.Samples were sent to the Illinois State Police Crime Laboratory for DNA analysis.I am requesting this continuance for two months pursuant to 725 ILCS 5/103-5(c), the extended time frames pertaining to DNA analysis.This defendant has been in custody since November 27th of 2000.That indicates that as of the commencement of the April jury term, April 9th, that would be 134 days total, which is within a time for an extended continuance based on DNA reports.So, that is my request, for a continuance until that time.

[THE COURT]: Mr. Bullock.

[MR. BULLOCK]: Your Honor, I realize that Ms. Dobson is probably entitled to the continuance.We would object.I believe that the 120 days is not yet tolled.The DNA results are not in.I realize that if the—waiting for the DNA results requires an extension beyond the 120 days, that the State would be entitled to it.However, I am not sure that—if the DNA results do come in before the 120 days are up, I don't believe that there is any additional extension that the People are entitled to, if the DNA results are in.And, so, I would object—I would ask that—I would object to the continuance and ask, if it's going to be continued, that it be continued to the next pre[]trial.So, we can determine if the DNA results are in and that the issue of extending beyond the 120 days for the DNA results be— that the [c]ourt not rule on that until we find out that it's necessary.Until the 120 days actually has passed or is about to pass, and the DNA results are not in.If they are in before then, I would ask that, at least, that an unnecessary extension not be granted in anticipation of them being more than 120 days.

[THE COURT]: Ms. Dobson.

[MS. DOBSON]: Well, in terms of the defense objection to my continuance until next month, as Mr. Bullock has indicated, I am statutorily entitled to proceed the way I have, to obtain the results that I believe are necessary in this case.I can understand why the defendant wouldn't want me to have them.I have a right to them and so, I think that as a matter of right I should have the continuance until the February pretrial for the March term.It's my experience in dealing with these matters that the DNA results are not likely to be finished before the April term anyway.Should the results come back early, I am still requesting a continuance now within the 120 days I have initially, as opposed to the DNA continuance, because I want to be the one to try this case.As things have happened in my office, there are few people available who have been trained or experienced in the presentation of DNA evidence.I am one of those people right now and I would like to handle this matter myself.So, I am requesting a continuance until the March pre[]trial and the April term."(Emphases added.)

The court granted a continuance until the February pretrial and the March jury term.This was not a continuance beyond the initial 120-day speedy-trial term.The court declined to rule on a continuance beyond the March term to wait and see if the DNA results came in and if a continuance beyond the 120-day speedy-trial term was even necessary.

The State's argument that defendant asked for a continuance until the February pretrial, and is therefore himself responsible for 28 days of delay, is based...