People v. Colts
| Decision Date | 17 August 1993 |
| Docket Number | No. 1-91-0933,1-91-0933 |
| Citation | 269 Ill.App.3d 679,645 N.E.2d 225,206 Ill.Dec. 220 |
| Parties | , 206 Ill.Dec. 220 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry COLTS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel J. Stohr, Chicago, for defendant-appellant.
State's Atty. of Cook County, Chicago (Jack O'Malley, Renee Goldfarb, Theodore F. Burtzos, Barbara Jones and Joseph Alesia, of counsel), for plaintiff-appellee.
A jury found defendant, Larry Colts, guilty of attempted murder, and the trial court sentenced him to a term of 25 years' imprisonment. On appeal, defendant argues that the trial court erred by (1) denying his motion for discharge on speedy trial grounds; (2) admitting hearsay testimony; (3) overruling defense counsel's objection to defendant's volunteered alibi testimony; (4) permitting cross-examination concerning the alibi and defendant's lifestyle; (5) overruling objections to cross-examination of a defense witness; and (6) permitting improper closing argument. Defendant also asks this court to reverse because he did not receive effective assistance of counsel. We affirm.
Henry Sims grew up in the area of Grenshaw and Pulaski streets in Chicago, where he became friends with defendant. Sims moved out of the neighborhood in 1980, but he visited the area almost every day. On September 21, 1989, Sims drove to that area with Amanda Simmons, his fiancee. Sims saw defendant with two other men. After speaking with one of the men, Sims verbally confronted defendant, then drove away.
Sims and Simmons returned to the area the next day. While they were talking to Herbert Gleason, a man carrying guns walked up behind Sims' car and fired several shots into the car, hitting Sims.
Simmons drove the car, from the passenger side, for several blocks to get away from the area. Once she felt safe enough, she moved to the driver's side and drove to Cook County Hospital, where Sims received treatment and answered police questions. The bullet wound has rendered Sims a paraplegic. Police arrested defendant on November 10, 1989, and charged him with attempted murder for shooting Sims.
The assistant public defender representing defendant filed a written demand for trial on November 13, 1989, but the trial court continued the case to January 17, 1990. On that date, defendant agreed to a continuance to February 7. The State filed charges against defendant for a separate offense unrelated to this case, and the trial court set the new charge for status hearing on February 7. The record of the hearing shows that defendant demanded trial on the new charge, but it shows no discussion of the attempted murder charge. The trial court indicated that the new case was continued, on the State's motion, to February 27, 1990, but the record for this case indicates that defense counsel agreed to a continuance to February 27 on the attempted murder charge. Defendant did not appear in court on February 7.
Defense counsel agreed to further continuances to April 25 at a series of hearings for which defendant was not present in court. The April 25 transcript again indicates that defendant demanded trial on the newer charge, but it shows no discussion of the attempted murder charge. The half-sheet on the attempted murder charge shows a continuance by agreement to May 1, 1990. On May 1, the State dismissed the newer charge and defense counsel agreed to a continuance to May 4 on the charge of attempted murder.
On May 4, 1990, defense counsel demanded trial and said defendant "wanted to demand [trial]" at the May 1 hearing. The trial court granted the State's motion for a continuance. The trial court granted the State further continuances to June 25, 1990. Defendant petitioned for discharge due to violation of his right to speedy trial. The trial court denied the motion and set the attempted murder charge for trial on June 26, 1990.
Defendant argues on appeal that the trial court should have granted his motion for discharge. The State must bring a defendant in custody to trial within 120 days of the date on which he is taken into custody unless the defendant causes the delay. (Ill.Rev.Stat.1989, ch. 38, par. 103-5(a).) "A defendant is considered to have occasioned a delay when he requests a continuance, agrees to a continuance, or when his actions otherwise cause or contribute to a delay." (People v. Grayson (1988), 165 Ill.App.3d 1038, 1041, 117 Ill.Dec. 550, 520 N.E.2d 901.) Defendant has the burden of establishing a violation of the statute. People v. Turner (1989), 128 Ill.2d 540, 550, 132 Ill.Dec. 390, 539 N.E.2d 1196.
Clients are generally bound by the acts of their attorneys. People v. Bowman (1990), 138 Ill.2d 131, 141, 149 Ill.Dec. 263, 561 N.E.2d 633.
"[T]he record need not always affirmatively show that when an attorney requests or agrees to a continuance, he has consulted with and received the advice of the accused, because such a rule would intolerably burden the trial courts." (Bowman, 138 Ill.2d at 142, 149 Ill.Dec. 263, 561 N.E.2d 633.)
Therefore, a defendant is bound by his counsel's request for a continuance, even if the request is made in the accused's absence, unless defendant overcomes the presumption that defense counsel acted on defendant's authorization. Bowman, 138 Ill.2d at 142-43, 149 Ill.Dec. 263, 561 N.E.2d 633.
Defendant here has not presented any facts showing that counsel's agreements to continuances were unauthorized. Defendant has presented no facts concerning any of the continuances by agreement in this case apart from the continuance from May 1 to May 4. Counsel's single statement at the May 4 hearing that defendant wanted to demand trial on May 1 is insufficient to show that the original agreement to a continuance was unauthorized. Therefore, all of the continuances to which defense counsel agreed must be charged to defendant despite defendant's absence from court.
Defendant next maintains that the continuances granted on February 7 and May 1 were results of the State's motions. While the records of those hearings show that the State moved for continuances in proceedings on the unrelated charge against defendant, the record contains no discussion of proceedings on the attempted murder charge. The half-sheet indicates that defendant agreed to the continuances. Again, defendant has failed to meet his burden of establishing that he did not agree to those continuances.
Defendant's trial began 228 days after police arrested him. Defense counsel agreed to continuances from January 17, 1990, until May 4, 1990, for a total of 107 days. Defendant moved for discharge on June 25, 1990, which was the 120th day chargeable to the State. Time required for disposition of defendant's motions is delay caused by the defendant. (People v. Smith (1976), 42 Ill.App.3d 731, 735, 1 Ill.Dec. 468, 356 N.E.2d 656.) Not all motions cause delays. "Whether a motion in fact causes delay depends on the facts and circumstances of each case, and the trial court must appraise the timeliness and complexity of the motion." People v. Montenegro (1990), 203 Ill.App.3d 314, 317, 148 Ill.Dec. 337, 560 N.E.2d 934.
Before defendant brought his motion for discharge, prosecutors told the trial court they were prepared for trial. At the end of hearing on the motion, the trial court denied the motion and set trial for the next day. Although the motion for discharge was fairly straightforward, requiring only a relatively brief hearing, we find that the motion caused the one day delay in the start of trial. Therefore we hold that the trial court did not violate defendant's right to a speedy trial.
Defendant raises several issues related to evidence presented at trial. We review all of the evidence presented before discussing each evidentiary issue separately.
Sims testified that when he visited his old neighborhood the day before the shooting, after talking with one of the men he had seen with defendant, Sims asked defendant why Sims could no longer visit the neighborhood. Defendant said things were changing and since Sims "wasn't a New Breed * * * [he] could no longer come around in the neighborhood," and if Sims returned to the neighborhood the gang "would deal with [him] severely." Amanda Simmons testified that she, too, heard defendant make this threat.
Sims testified that he had been a member of the Vice Lords, but he left the gang in 1986. Sims said that the New Breed was part of the Black Gangsters, which was a rival of the Vice Lords. Sims testified that defendant "is supposed to be[ ] the chief in that area" for the New Breed. On cross-examination, Sims admitted that Vice Lords and Black Gangsters cooperated at times, and he could not say whether they were operating on a friendly basis in 1989, because he was not then in either gang. Sims also said that Vice Lord chiefs often told other gang members to do jobs they wanted done, and he again admitted that he had heard defendant was a chief of the New Breed. Sims said on redirect that defendant's new position was the reason he wanted Sims out of the neighborhood. Defense counsel objected, then withdrew the objection. On re-cross-examination Sims admitted that he saw defendant a number of times between August 1989, when he was supposed to have become a chief, and September 21, when Sims said defendant first told him to leave the neighborhood.
Defendant's testimony concerning the confrontation on September 21 largely contradicted Sims' testimony. Defendant admitted at trial that he had been a member of the Black Gangsters in 1976, but he stopped all affiliations with gangs in 1980. Defendant testified that when he spoke with Sims on September 21, 1989, six or seven people were present, but Simmons was not there. Sims told defendant that the man he just spoke to told Sims he could no longer sell drugs in the neighborhood. Defendant told Sims he did not know...
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