People v. Grayson

• Decision Date: 22 January 1988
• Docket Number: 85-2239,Nos. 85-1303,s. 85-1303
• Parties: , 117 Ill.Dec. 550 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John GRAYSON and Darren Lindsey, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 901

520 N.E.2d 901

165 Ill.App.3d 1038, 117 Ill.Dec. 550

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John GRAYSON and Darren Lindsey, Defendants-Appellants.

Nos. 85-1303, 85-2239.

Appellate Court of Illinois First District, Fifth Division.

Jan. 22, 1988.

Rehearing Denied Feb. 23, 1988.

Steven Clark, Deputy Defender, Karen Michels, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for defendants-appellants.

Richard M. Daley, State's Atty., Cook County, Chicago (Thomas V. Gainer, Jr., Joan Disis, Caroline Koplin, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

This is a consolidated appeal from the jury convictions of burglary and the sentences of defendants, John Grayson and Darren Lindsey. Defendants were sentenced respectively to seven years and six years imprisonment. The basic facts are as follow.

Responding to an early morning burglar alarm call, two police officers drove to a grocery store on South Kedzie in Chicago and parked the squad car with its spotlight shining upon a large hole in the rear of the store. As the officers approached the store, they observed defendants climbing out of the hole. According to the officers' testimony, the car spotlight illuminated Lindsey's face as he emerged first, immediately running away. As Grayson followed Lindsey out, a crowbar fell to the ground. One of the officers apprehended Grayson while the second officer pursued Lindsey who was found hiding under a nearby porch. An assist unit placed defendants in an arrest wagon whereupon the officers climbed through the hole into the store. They found three to five large plastic bags filled with food items from the store. When they were unable to find other persons, a canine unit was summoned. The unit discovered two more suspects hiding in the store. These two men were later identified as Robert and Edward Pride. All four suspects were then transported to the police station and subsequently charged with burglary.

Before trial, Robert Pride pleaded guilty but was not sentenced by defendants' trial time. Edward Pride entered a guilty plea on the second trial day. Although Robert Pride was not allowed to testify at trial because he asserted his fifth amendment rights, an offer of proof was made outside the presence of the jury that only he and his brother committed the burglary with no help from defendants. Edward Pride testified to the same effect. Further facts will be set forth in the discussion of the following issues on appeal.

The first issue raised by defendants consists of their contention that they were denied effective assistance of counsel because of failure to move for dismissal based on violations of their rights to a speedy trial. They argue that Grayson was tried 167 days into the terms, and Lindsey was tried 128 days into the term. The State asserts that Grayson was tried on the 88th day, and Lindsey on the 68th day. We agree with the State.

Illinois law provides that a person in custody must be tried 120 days from the date he was taken into custody unless delay is caused by the defendant. (Ill. Const. 1970, art. I, § 8; Ill.Rev.Stat.1983, ch. 38, par. 103-5.) Defendants carry the burden to affirmatively establish a violation of the right to a speedy trial, and delays attributable to a defendant toll the statutory period. (People v. Reimolds (1982), 92 Ill.2d 101, 65 Ill.Dec. 17, 440 N.E.2d 872.) 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. Bivins (1981), 97 Ill.App.3d 386, 52 Ill.Dec. 835, 422 N.E.2d 1044.) Applying these general rules to the delays contested by defendants as being attributable to them, we find no violations of their speedy trial rights.

First, defendants erroneously charge the court with delays occasioned by Grayson's motion for substitution of judges. This two-day delay is attributable to Grayson. The 43-day period between August 16 and September 28, 1984, is chargeable to both Grayson and Lindsey; the continuance was by agreement so defendants could obtain counsel.

Grayson next disputes the continuance occurring from October 5 to October 30, 1984. On September 28, assistant Public Defender Preston Bowie was appointed to represent all defendants. On October 5, Grayson filed a pro se motion for severance which was later denied and a pro se motion for appointment of counsel other than a public defender because of complaints he had pending against the office of Public Defender arising out of their representation of him in an unrelated case. The court took the appointment of counsel motion under advisement and informed Grayson that assistant Public Defender Gary Stanton would continue to represent him until the motion was ruled on. Also on this date, Grayson expressly agreed to a continuance to October 30 for discovery purposes, including the arranging of an interview for Edward Pride concerning his participation in a Treatment Alternatives to Street Crime program (T.A.S.C.). Not only did Grayson himself agree to this continuance but, in spite of the continuance being partially for the purpose of the T.A.S.C. interview, the interval was also partly due to Grayson's pro se motion and therefore 25 more days are attributable to him. (See People v. Ruple (1980), 82 Ill.App.3d 781, 38 Ill.Dec. 114, 403 N.E.2d 129.) This time period also tolled the statutory period for Lindsey as his counsel requested and agreed to the continuance.

On October 31, the court granted Grayson's request for alternative counsel and asked Grayson if he wanted a continuance to November 13 for that purpose, since no private attorney was then available. Grayson objected and stated that he wanted to demand trial. Earlier, upon filing his pro se motion, Grayson told the court that he could not represent himself and wanted an appointed attorney. After his objection, the court granted the State's motion to continue the matter to November solely for appointment of counsel for Grayson. Therefore, although the State made the motion, the 13-day delay can be charged to Grayson. See People v. Ruple (1980), 82 Ill.App.3d 781, 38 Ill.Dec. 114, 403 N.E.2d 129.

Attorney Robert Romanoff appeared as counsel for Grayson on November 13 and the matter was continued to November 21 (8 days) at his request. On November 21, Romanoff filed a discovery answer and said he needed time for additional investigation; Assistant Public Defender Bowie, representing Lindsey, also requested additional time. The resulting continuance to December was by agreement, was set for the convenience of Grayson's counsel, and is attributable to both defendants. On December 4, the court was informed that defendants were ready for trial. When counsel were asked by the court if the next date of January 21, 1985, was by agreement, counsel Bowie responded "yes," while counsel Romanoff made no comment. These 48 days tolled the statutory period for both defendants since Lindsey's attorney affirmatively answered and Grayson's attorney did not object to the trial date set by the court after earlier stating that his client was ready for trial. People v. Baker (1984), 127 Ill.App.3d 565, 82 Ill.Dec. 958, 469 N.E.2d 602.

On subsequent dates there were other continuances, most of which were either by agreement or on motions by Grayson's counsel. The above discussion delineates 152 days chargeable to defendant Grayson who had been in custody for 286 days at the time of trial. At least 60 more days were attributable to Grayson and are not contested. Thus, it is clear that Grayson's right to a speedy trial was not violated.

Defendant Lindsey claims that he was tried 128 days into the term. However, our examination of the record reveals that he also was tried within the requisite 120-day term after considering delays that were chargeable to him. Lindsey contends that several continuances obtained for the benefit of his codefendants should not be attributed to him. However, the continuances encompassing the time period of October 5 to December 4, 1984, were expressly agreed to by assistant Public Defender Bowie, who was representing him.

Additionally, on February 28, 1985, Lindsey asked to join in Grayson's pro se motion to dismiss alleging violations of their rights to a speedy trial. Mr. Bowie then withdrew as Lindsey's counsel and the court appointed Mr. Romanoff to represent Lindsey for the duration of the trial. Attorney Romanoff expressly agreed to a continuance to March 7 for a hearing on the motion, and a subsequent agreement to continue again to March 22 so the court could review transcripts. The fact that later, on April 8, Mr. Romanoff told the court that Lindsey would not be joining in Grayson's pro se motion, and proceeded to argue the motion on Grayson's behalf, does not change the result of the continuances tolling the statute for both defendants. It is elemental that a defendant is bound by the acts of his counsel and any resultant delays are attributable to defendant (People v. Clay (1981), 98 Ill.App.3d 534, 54 Ill.Dec. 64, 424 N.E.2d 814), and that agreement to a continuance by counsel is attributable to a defendant (People v. Jump (1984), 127 Ill.App.3d 440, 82 Ill.Dec. 498, 468 N.E.2d 1278.) Accordingly, Lindsey was brought to trial 68 days into the term, well within the requisite 120 days.

In reviewing speedy trial claims, this court must defer to the trial court's judgment. (People v. Reimolds (1982), 92 Ill.2d 101, 65 Ill.Dec. 17, 440 N.E.2d 872.) Moreover, the trial court's decisions as to responsibility for the delays should be sustained absent a clear showing of abuse of discretion. (92 Ill.2d 101, 65 Ill.Dec. 17, 440 N.E.2d 872.) The record before us indicates no abuse of discretion. Accordingly, both defendants Grayson and Lindsey were timely tried.

Defendants' second contention is that...