People v. Exson

• Citation: 896 N.E.2d 844,384 Ill. App.3d 794
• Decision Date: 29 September 2008
• Docket Number: No. 1-06-0924.,1-06-0924.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marvin EXSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

896 N.E.2d 844

384 Ill. App.3d 794

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marvin EXSON, Defendant-Appellant.

No. 1-06-0924.

Appellate Court of Illinois, First District, First Division.

September 29, 2008.

Michael J. Pelletier, Deputy Defender, Heidi Linn Lambros, Assistant Appellate Defender, Office of the State Appellate Defender, of Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, of Chicago (James Fitzgerald,

Anthony M. O'Brien, and Richard O. Cherry, of Counsel) for Appellee.

Modified Upon Denial of Rehearing

Justice WOLFSON delivered the opinion of the court:

The defendant was found guilty by a jury of two counts of possession of a controlled substance. He was sentenced to concurrent terms of three years in prison. The only issue in this case is whether the defendant's statutory right to a speedy trial was violated when the trial court granted the State a 30-day extension of the 120-day trial term. We conclude it was. We reverse the trial court's judgment and remand the cause with directions to enter an order discharging the defendant.

FACTS

Defendant was arrested on March 2, 2005, for possession of cocaine and heroin. Defendant was unable to post bond and remained incarcerated until April 13, 2005, when he was placed on an electronic home monitoring program. Defendant filed a motion to quash his arrest and suppress evidence on May 2, 2005, alleging he was arrested without probable cause. On June 9, 2005, defendant made a demand for trial, but the State answered it was not ready to proceed. The matter was continued until August 3, 2005. On that date, the State filed another motion to continue the cause to August 22, 2005. The motion was granted. Defendant again demanded trial.

On August 22, 2005, defendant requested leave to withdraw his motion to quash, demanded trial, then asked to reinstate his motion to quash and suppress. The State objected to the reinstatement of the motion because only one day remained before the expiration of the 120-day speedy trial period. The trial court overruled the objection and conducted a hearing in the matter. The court then denied the motion and defendant answered ready for jury trial.

The State responded it was not ready to proceed with a jury trial because it had not located the chemist who conducted the forensic testing of the drugs seized from defendant and requested a continuance. The State explained it was under the impression that defendant was going to be tried by the judge, and therefore assumed defendant's attorney, an assistant Cook County public defender, would stipulate to the results of the forensic testing, as was the custom of that office.

Defense counsel objected to the continuance, noting she never indicated her client would stipulate to the forensic test results. She acknowledged that the matter was set for a bench trial, and that it was the custom of her office to stipulate to laboratory results in bench trials involving narcotics possession. She said she never indicated this custom would not be followed in this case, although the Assistant State's Attorney never asked. She said defendant had a right to a jury trial, had never waived that right, and was ready to proceed to trial.

When asked to explain its search for the chemist, the State informed the court that after it learned of defendant's jury trial demand that morning it called the Illinois State Police Crime Laboratory and was told the chemist who performed the analysis was no longer employed there. The State also tried to locate the chemist through her last known address and telephone number, but was unsuccessful. This was the State's first attempt to contact the chemist.

At the conclusion of this hearing, the trial court granted the State's request for a 30-day continuance, to September 19, 2005. In doing so, the court noted that it is "the custom of the parties when a bench trial is indicated that stipulations to toxicology evidence is normally anticipated" and that it did not think "it was unreasonable for the State to assume that the lab would be stipulated" in this case. The court further observed that the matter was set for a bench trial that day, and understood "how the State would not under these circumstances begin it's efforts to locate the analyst in this case." The court found the State's efforts to contact the chemist after it was informed of defendant's jury demand constituted due diligence.

On September 19, 2005, the trial was continued by agreement to November 21, 2005, due to the absence of defense counsel. On November 21, before the jury trial began, defendant filed a motion to dismiss the charges based on a lack of due diligence by the State in locating the chemist, in violation of his statutory right to a speedy trial. The trial court denied the motion. At trial, the former Illinois State Police chemist who analyzed the recovered items testified. She said her analysis determined the evidence seized from the defendant contained cocaine and heroin. The defense contested the chain of custody.

DECISION

The issue is the propriety of the order granting the State a 30-day extension to locate the chemist. Defendant contends the State did not act with due diligence to locate the chemist prior to trial, and that it should not have presumed the defense would stipulate to the laboratory results. Defendant contends the trial court improperly continued the matter beyond the statutory speedy-trial period. The State does not deny electronic home monitoring is equivalent to incarceration, nor does it deny the statutory speedy trial period would have run absent the trial court's finding of due diligence and granting of the 30-day extension.

A defendant has a right to a speedy trial under both the Federal and Illinois Constitutions (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8), as well as under Illinois statute (725 ILCS 5/103-5 (West 2004)); however, these rights are not precisely equivalent (People v. Staten, 159 Ill.2d 419, 426, 203 Ill.Dec. 230, 639 N.E.2d 550 (1994)). In order to prove a statutory violation, defendant need only show that despite his demand for trial he has not been tried within the period set by statute and that he has not caused or contributed to the delays. Staten, 159 Ill.2d at 426. 203 Ill.Dec. 230, 639 N.E.2d 550. Proof of the constitutional violation, by contrast, requires consideration of the length of the delay in trial, the reasons for the delay, the defendant's assertion of the speedy-trial right, and prejudice to the defendant caused by such delay. Staten, 159 Ill.2d at 426, 203 Ill.Dec. 230, 639 N.E.2d 550. When a statutory speedy-trial violation is alleged, "the statute operates to prevent the constitutional issue from arising except in cases involving prolonged delay, or novel issues." Staten, 159 Ill.2d at 426, 203 Ill.Dec. 230, 639 N.E.2d 550 (quoting People v. Stuckey, 34 Ill.2d 521, 523, 216 N.E.2d 785 (1966)). In this case, defendant's speedy trial claim is statutory, not constitutional.

In Illinois, every incarcerated defendant must be tried within 120 days from the date he was taken into custody except in circumstances not present here. 725 ILCS 5/103-5(a) (West 2004). If he is not, the court must release him from custody and dismiss the charges against him. 725 ILCS 5/103-5(d) (West 2004).

The period in which defendant must be tried, however, may be extended once by up to 60 days where the State has been unable to obtain evidence despite its due diligence and has provided reasonable grounds for the court to believe that it will do so at a later date. 725 ILCS 5/103-5(c) (West 2004). The decision to extend the speedy trial period beyond 120 days lies within the discretion of the trial court, and we will not disturb its determination absent a clear abuse of discretion. People v. Richards, 81 Ill.2d 454, 458, 43 Ill.Dec. 700, 410 N.E.2d 833 (1980).

I. Forfeiture of the Issue

The State contends defendant forfeited his right to assert a speedy trial claim because he failed to raise the issue in his post-trial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) (both a trial objection and a written post-trial motion raising the issue are required "for alleged errors that could have been raised during trial.")

Defendant acknowledges the omission. He contends it was not necessary for him to raise the issue in his post-trial motion given the numerous objections he made to the extension at trial. Defendant also contends his claim fits within the constitutional exception to the waiver doctrine recognized in Enoch, 122 Ill.2d at 190, 119 Ill. Dec. 265, 522 N.E.2d 1124 ("when the defendant fails to comply with the statutory requirement to file a post-trial motion, our review will be limited to constitutional issues which have properly been raised at trial and which can be raised later in a post-conviction hearing petition [citation], sufficiency of the evidence, and plain error.")

Reviewing courts in this state have applied the waiver doctrine in circumstances where, as here, defendant failed to assert his speedy trial claim in a post-trial motion. See e.g., People v. Peco, 345 Ill. App.3d 724, 728, 281 Ill.Dec. 157, 803 N.E.2d 561 (2004); People v. Turley, 235 Ill.App.3d 917, 919, 175 Ill.Dec. 908, 601 N.E.2d 305 (1992).

Several appellate court decisions have taken the position that "waiver is a bar upon the parties and not upon the court." For example, see People v. Villanueva, 382 Ill.App.3d 301, 305, 320 Ill.Dec. 621, 887 N.E.2d 765 (2008), quoting People v. Roberts, 299 Ill.App.3d 926, 931, 234 Ill.Dec. 83, 702 N.E.2d 249 (1998). Roberts relied on the supreme court's statement in Wagner v. City of Chicago, 166 Ill.2d 144, 149, 209 Ill.Dec. 672, 651 N.E.2d 1120 (1995). Wagner is a civil case, but does not limit its view of waiver to civil cases. See also In re Marriage of Sutton, 136 Ill.2d 441, 446, 145 Ill.Dec. 890, 557...