People v. Fly

• Decision Date: 19 August 1993
• Docket Number: No. 4-92-0736,4-92-0736
• Citation: People v. Fly, 619 N.E.2d 821, 249 Ill.App.3d 730 (Ill. App. 1993)
• Parties: , 189 Ill.Dec. 120 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John E. FLY, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 821

619 N.E.2d 821

249 Ill.App.3d 730, 189 Ill.Dec. 120

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John E. FLY, Defendant-Appellant.

No. 4-92-0736.

Appellate Court of Illinois Fourth District.

Aug. 19, 1993.

Daniel D. Yuhas, Deputy Defender, Office of the State Appellate Defender, Springfield, IL, Gloria Ann Morris, Asst. Defender, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Norbert J. Goetten, Director State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Jeffrey K. Davison, Staff Atty., for plaintiff-appellee.

Justice LUND delivered the opinion of the court:

Following a jury trial in the circuit court of Champaign County, defendant John E. Fly was convicted of unlawful delivery of a controlled substance (Ill.Rev.Stat.1991, ch. 56 1/2 par. 1401(a)(2)(A)) and sentenced to 14 years' imprisonment. Defendant appeals, claiming that (1) he was denied his right to a speedy trial, (2) he was prejudiced by the State's mention of his failure to call witnesses where he rested at the close of the State's case, and (3) the trial court abused its discretion by refusing to answer a question submitted by the jury during deliberations.

On January 17, 1991, in Champaign County, an undercover police officer allegedly purchased 28.7 grams of a substance containing 33% cocaine from defendant. Defendant was not arrested at that time. On July 8, 1991, charges were brought against defendant in Champaign County. At the time charges were filed, defendant was serving a five-year prison term at Logan Correctional Center (Logan) on a conviction for unlawful possession of cannabis with intent to deliver.

In July 1991, defendant learned he might have an outstanding warrant when he received a newspaper clipping from a relative stating that a warrant had been issued for his arrest in Champaign County for allegedly selling drugs. On August 19, 1991, defendant sent a letter to the Champaign County circuit clerk's office (circuit clerk), asking if charges had been brought against him on July 8, 1991, and, if so, requesting a copy of charges and any court documents. Defendant contends he requested this information in order to file a speedy-trial demand.

On August 22, 1991, defendant's letter was returned to him by the circuit clerk, with a note across the bottom stating: "I find no charges being filed against you for the year of 1991." Defendant then asked his counselor at Logan to check once again for any charges against him. The counselor found nothing on record. Defendant was transferred to Decatur in November 1991 and enrolled in a work-release program. On April 18, 1992, while on a 48-hour pass from the work-release center, defendant was arrested in Champaign County pursuant to the warrant issued on July 8, 1991.

I

Defendant first argues that he was unable to exercise his right to a speedy trial due to misinformation supplied by the circuit clerk's office. The right to a speedy trial is explicitly guaranteed in Federal prosecutions by the sixth amendment (U.S. Const., amend. VI) and has been made obligatory in State prosecutions by incorporation in the fourteenth amendment. This right is guaranteed under Illinois law. (Ill. Const.1970, art. I, § 8; Ill.Rev.Stat.1991, ch. 38, par. 103-5.) The fact that a right to a speedy trial can be based either on constitutional or statutory grounds has led to some confusion in deciding speedy-trial cases. Existence of specific time limits under Illinois statute not found under the United States Constitution or Illinois Constitution creates a possibility of violation of the statutory guarantee without violating the constitutional guarantee.

It is not clear from defendant's argument whether he is asserting a lapse of the statutory time limit as the basis for his claim, or whether he is asserting a constitutional violation due to error by the circuit clerk. To address defendant's argument on the basis of the statutory time limit, we first note that under section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1991, ch. 38, par. 103-5(b)), a defendant must make a demand for a speedy trial before the 160-day term provided by the statute will begin to run. Due to the error of the circuit clerk, defendant was not able to make such a demand. In the absence of a demand for trial, for purposes of Illinois law, the 160-day term for a speedy trial does not commence. (People v. Freeland (1981), 103 Ill.App.3d 94, 97, 58 Ill.Dec. 335, 338, 430 N.E.2d 277, 280.) Thus, had we interpreted defendant's argument to be based upon his statutory right to a speedy trial, his argument would be without merit.

Since no demand for a speedy trial was ever actually filed, the trial court interpreted defendant's argument to be based upon his sixth amendment right to a speedy trial. Under the sixth amendment (U.S. Const., amend. VI) and article I, section 8, of the Illinois Constitution (Ill. Const.1970, art. I, § 8) the right to a speedy trial is not subject to a specific time limitation within which defendant must be tried. The standard for determining whether a defendant's sixth amendment right has been violated was set out by the Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Under the Barker standard, four factors are to be balanced in determining whether a delay in trial has breached constitutional limitations: (1) length of delay, (2) reason for delay, (3) defendant's assertion of his right, and (4) prejudice to defendant. No one of these factors singly is necessary or sufficient to support a finding that the right to a speedy trial has been violated. Rather, these factors are to be considered with all other circumstances within the case which might bear on the claim. "In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Barker, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.) The Illinois Supreme Court applied the same standard set forth in Barker in People v. Bazzell (1977), 68 Ill.2d 177, 182-83, 11 Ill.Dec. 594, 596, 369 N.E.2d 48, 50, citing People v. Henry (1970), 47 Ill.2d 312, 316, 265 N.E.2d 876, 879, and People v. Tetter (1969), 42 Ill.2d 569, 573, 250 N.E.2d 433, 435. See also People v. Howell (1983), 119 Ill.App.3d 1, 74 Ill.Dec. 734, 456 N.E.2d 236; People v. Jackson (1987), 162 Ill.App.3d 476, 113 Ill.Dec. 581, 515 N.E.2d 390.

The trial court applied the Barker balancing test and held that defendant's constitutional right to a speedy trial was not violated. The trial court stated:

"I can conceive of nothing, now having had the benefit of hearing the evidence adduced at trial, that suggests that there was any type of prejudice to Mr. Fly in terms of the preparation and presentation of his defense. * * * The prejudice is he lost his opportunity * * * to demand a trial within 160 days. That's the prejudice. But, I don't view that as the same thing as a constitutional violation of his constitutional right to a speedy trial. It's a violation of his opportunity to obtain or to demand a speedy trial under the provisions of the Illinois statute, which are not the same thing as the constitutional right to a speedy trial."

Although the circuit clerk's error in advising defendant that he had no outstanding warrants is not condoned, we find no prejudice to defendant's presentation of his case.

Defendant argued the date of his letter to the circuit clerk should serve as the starting point for the running of his concurrent sentence and, thus, he should be credited for incarceration time prior to his arrest for this offense. Defendant received a 14-year sentence, to run concurrently with the sentence he is presently serving. Defendant was given credit for all days served from the date of his arrest on April 18, 1992. In setting defendant's sentence, the trial court considered as a mitigating factor defendant's inability to resolve the case sooner due to the circuit clerk's error and imposed a concurrent, rather than consecutive, sentence.

Defendant had five prior criminal convictions, of which four were felonies. The Class X felony of which defendant stands convicted carries a sentencing range of 6 to 30 years' imprisonment. It is the opinion of this court that the trial court adjusted the sentence to address the facts and properly refused to consider time spent in custody prior to his arrest.

II

Defendant next argues he was prejudiced by the State's suggestion during closing arguments that he could have, but did not, produce certain witnesses. He claims the trial court's attempt to correct the possible misconceptions created by the State's suggestion only served to mislead the jury. We recognize the State's comment as error, but are not convinced the error prejudiced defendant in such a way as to require reversal.

At trial, defendant did not present a case, but rested at the close of the State's evidence. In closing argument, counsel for defendant questioned why the State did not call its confidential source to testify. This confidential source was the individual who initially placed law enforcement officials in contact with defendant. Testimony at trial indicated the confidential source witnessed the alleged sale of cocaine by defendant to the undercover officer. Defense counsel asserted the State's failure to call the confidential source as a witness allows the jury to draw an inference that his testimony would be unfavorable to the State.

In rebuttal, the prosecution acknowledged the confidential source did not testify and mentioned that defendant had not produced certain individuals who were potential witnesses. During the State's evidence, a surveillance officer testified defendant had arrived for the drug transaction in an auto that contained four unidentified people. Those four were not called as witnesses. The record includes the following:

"[Prosecution]: [Defense counsel]...