People v. Cooksey

• Decision Date: 22 December 1999
• Docket Number: No. 1-97-2689.,1-97-2689.
• Citation: 243 Ill.Dec. 481,309 Ill. App.3d 839,723 N.E.2d 784
• Court: United States Appellate Court of Illinois
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Toijuan COOKSEY, Defendant-Appellant.

723 N.E.2d 784

309 Ill. App.3d 839

243 Ill.Dec. 481

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Toijuan COOKSEY, Defendant-Appellant.

No. 1-97-2689.

Appellate Court of Illinois, First District, Third Division.

December 22, 1999.

Michael J. Pelletier, Deputy Defender (Debra R. Salinger, Assistant Appellate Defender, of counsel), Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney (Renee Goldfarb, Margaret J. Faustmann, Assistant State's Attorneys, of counsel, Bumjoon Park, law clerk), Chicago, for Appellee.

Justice BURKE delivered the opinion of the court:

Following a jury trial, defendant Toijuan Cooksey was convicted of robbery (720 ILCS 5/18-1 (West 1996)) and vehicular hijacking (720 ILCS 5/18-3 (West 1996)) and sentenced to concurrent terms of 7 years' and 10 years' imprisonment, respectively. On appeal, defendant contends that the State failed to bring him to trial within 120 days, in violation of the Illinois Speedy Trial Act (725 ILCS 5/103-5 (West 1996)) and to prove him guilty beyond a reasonable doubt of robbery and vehicular hijacking. For the reasons set forth below, we affirm in part and reverse in part.

Defendant was arrested and charged with robbery and vehicular hijacking on May 8, 1996, and was arraigned on June 19. At defendant's arraignment, the parties set the case for status for June 28, by agreement, at which time the case was continued until August 6, by agreement. On that date, defense counsel informed the court that he was still waiting for discovery materials from the State: specifically a "911" tape and photographs to prepare a motion to suppress the identification of defendant. Defense counsel asked the court to set the case for August 26, and the court stated that the cause would be set over for the State's compliance with discovery, by agreement.

On August 26, 1996, after calling the case, the State advised the court that discovery matters were still outstanding, and it requested a continuance to September 10. The court asked defense counsel whether September 10 was a "good date," and defense counsel replied, "Yes, Judge. That's fine." The following exchange then occurred:

"THE COURT: By agreement, September 10. Now I'm taking a half day off on that date, so —

MR. WIMBERLY [defendant's attorney]: I'll be here at 9:00.

THE COURT: Okay, See you back on September 10th.

MR. WIMBERLY: Okay. Thank you. Have a good day."

On September 10, defense counsel stated to the court that he had received the State's answer to discovery but had not received any other discovery materials. The following exchange then occurred:

"MR. WIMBERLY: I may request, I don't know what a two-week date is, if September 23rd is okay * * * or 26th, and then I may have to request a rule to show cause as to why discovery is not here.

* * *

THE COURT: * * * What is a good date for you?

MR. WIMBERLY: The 23rd or the 26th, one of those dates.

THE COURT: You can have either one. The 23rd is a bad day. * * * [T]he 26th?

MR. WIMBERLY: 26th, then, yes."

Subsequently, the case was continued, by agreement, to September 26, 1996, and on December 6, defense counsel filed a motion to suppress. On January 22, 1997, defendant withdrew the motion and demanded trial. The cause was continued on "Motion State" from January 22 to April 7. On April 7, the State moved, over defendant's objection, to extend the 120-day term another 60 days. The court allowed an extension, and on June 2, 1997, defendant's jury trial began.

At trial, the victim, Iramie Lavizzio, testified that on Sunday, May 5, 1996, she had been working as a supervisor at a J. Riggins clothing store in the River Oaks shopping mall in Calumet City, Illinois. The victim arrived at the store shortly before 11 a.m. and began her normal routine to open the store, part of which included collecting money and checks from the previous day and depositing them in a nearby neighborhood bank. While the victim was placing the cash and checks into a deposit bag, defendant, whom the victim had been dating for a few weeks, called her to ask for a ride. The victim informed defendant that she could not leave the store right away, but that she had to make a deposit and could then pick him up. Approximately five minutes after the first call, defendant called again to see if the victim was ready to pick him up, and the victim replied that she was just leaving with the deposit. The victim further testified that defendant had previously observed her normal routine in opening the store, had ridden with her to the bank, and had observed how she had made deposits.

The victim stated that she left the store carrying the deposit bag, walked to a service entrance of the mall not generally accessible to the public, and opened a door to go outside. As the victim was exiting through the door, someone whom she later identified as defendant, who was at that moment wearing either a bandanna or scarf around his mouth area, jumped from behind a dumpster toward her. The victim immediately dropped the deposit bag, which contained approximately $1,400 in currency and $300 in checks, and ran while yelling for help. The victim looked back to see defendant pick up the deposit bag. Defendant then yelled, "Come back here," as he began chasing the victim.

Defendant caught up with the victim, stuck "something" in her back, and demanded her car keys. The victim handed over her keys, and defendant pushed her and told her to run. The victim ran into the mall and notified mall security officers who, in turn, notified the police.

Jeff McBrayer, a mall security officer, testified that the victim had run up to him hysterically, telling him that she was just robbed and her car was just stolen. He accompanied her back to the store, and the victim then went to the parking lot to discover that her car was missing.

Daniel Shepherd, an eyewitness called by the State, testified that he was in the mall parking lot at the time of the incident, heard a woman scream and saw a man, whom he later identified as defendant, attack the woman and then run toward a car. Shepherd then observed defendant get in the car and speed off.

Defendant presented an alibi defense. After hearing the parties' closing arguments, the jury retired and subsequently found defendant guilty of robbery and vehicular hijacking. Thereafter, the trial court sentenced defendant to concurrent terms of 7 and 10 years' imprisonment for robbery and vehicular hijacking, respectively. This appeal followed.

Defendant first contends that his right to a speedy trial was violated because the State failed to bring him to trial within 120 days as required by section 103-5(a) of the Code of Criminal Procedure (Code) (725 5/103-5(a) (West 1996)).

Section 103-5(a) of the Code provides, in pertinent part, that "[e]very 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 was taken into custody unless delay is occasioned by the defendant." 725 5/103-5(a) (West 1996). A delay is occasioned by or attributable to the defendant when the defendant's acts caused or contributed to the delay resulting in the postponement of trial. See People v. Turner, 128 Ill.2d 540, 550, 132 Ill.Dec. 390, 539 N.E.2d 1196 (1989). An express agreement to, or acquiescence in, a continuance is an affirmative act attributable to the defendant for purposes of determining whether or not he was denied his right to a speedy trial. See People v. Reimolds, 92 Ill.2d 101, 106, 65 Ill.Dec. 17, 440 N.E.2d 872 (1982). The 120-day speedy-trial statutory period begins to run automatically, without a formal demand for trial, from the day the defendant is taken into custody. See People v. Garcia, 251 Ill.App.3d 473, 476, 190 Ill. Dec. 582, 621 N.E.2d 1035 (1993). However, any period of delay occasioned by the defendant temporarily tolls the running of the speedy-trial period until the expiration of the delay, at which point the period recommences. See People v. Kliner, 185 Ill.2d 81, 114, 235 Ill.Dec. 667, 705 N.E.2d 850 (1998). The defendant bears the burden of affirmatively establishing a speedytrial violation by showing that the delay was not attributable to his own conduct. See Kliner, 185 Ill.2d at 114, 235 Ill.Dec. 667, 705 N.E.2d 850.

Initially, we consider the State's argument that defendant has waived this issue on appeal due to his failure to file an oral or written motion to dismiss based on an alleged violation of his right to a speedy trial. Pursuant to section 114-1(a)(1), (b) of the Code, an accused claiming a violation of his right to a speedy trial is required to file a written motion seeking discharge prior to conviction; otherwise, "the grounds therefor * * * are waived." 725 ILCS 5/114-1(a)(1), (b) (West 1996). In the present case, although the record indicates that defense counsel demanded trial on January 22, 1997, defense counsel failed to file either an oral or written motion prior to trial seeking discharge or dismissal based upon a speedy-trial violation. Accordingly, the State is correct that defendant failed to properly preserve this issue for our review.

Defendant argues, however, that even if he has waived the issue we should still consider the merits of his argument because his attorney's failure to preserve the issue constitutes ineffective assistance of counsel. A defense counsel's failure to move for discharge of his client on the ground of a speedy-trial violation constitutes ineffective assistance of counsel where there is at least a reasonable probability that the defendant would have been discharged had a timely motion been filed and no justification exists for the defense counsel's decision not to file a motion. See Garcia, 251 Ill.App.3d at 478-79, 190 Ill. Dec. 582, 621 N.E.2d 1035. The defense counsel's failure to move for discharge or dismissal, however, cannot demonstrate either deficient performance on the defense co...