People v. Macon, 1-07-3378.
| Decision Date | 18 December 2009 |
| Docket Number | No. 1-07-3378.,1-07-3378. |
| Citation | 336 Ill. Dec. 634,396 Ill. App.3d 451,920 N.E.2d 1224 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny MACON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, State Appellate Defender, Thomas Lilien, Deputy Defender, Sherry R. Silvern, Assistant Appellate Defender, Office of the State Appellate Defender, Elgin, IL, for Plaintiff-Appellee.
Anita Alvarez, State's Attorney of Cook County (James E. Fitzgerald, Miles J. Keleher, Kelly Whalen, Assistant State's Attorneys, of Counsel), Chicago, IL, for Defendant-Appellant.
Following a jury trial, defendant Johnny Macon was convicted of aggravated criminal sexual abuse by use of force or threat of force and was sentenced to six years' imprisonment. On appeal defendant contends that the trial court improperly denied his motion to dismiss the indictment for failing to file within the statute of limitations. Defendant also contends that the State failed to provide sufficient evidence necessary to convict defendant of aggravated criminal sexual abuse by use of force or threat of force.
The following evidence was adduced at trial. On May 19, 2002, defendant spent the night at victim T. S.'s home. Defendant was T. S.'s mother's boyfriend in May of 2002 and he had been for about two years. At that time T.S. and her sister, Tarhonda, shared a bedroom. Between 3 and 6 a.m. the next morning, defendant came into her bedroom and whispered in her ear to come with him to the living room and told her to lie down. Then, while laying on top of T. S., he tried to force his penis into her vagina while she tried to push him off. Tarhonda was awakened, went into the living room and saw defendant "going back and forth" while lying on top of T.S. Tarhonda corroborated T.S.'s testimony at trial. Later that day T.S.'s mother, Sherron Brown, asked her son to call the police.
On May 20, 2002, T.S. was interviewed by the Chicago police department and reported that she had been sexually assaulted by her mother's boyfriend. After initially interviewing the victim and her family, investigating police detective Joseph Agosta began to search for defendant. On May 24, 2002, he went to defendant's parents' home, which was defendant's last known address. No one answered the door and the detective did not return to that location again. Defendant was not located by the police until 2006 although he had resided at his parents' home until 2003. On June 17, 2002, Detective Agosta filed a complaint for preliminary investigation. Thereafter a judge issued a warrant for defendant's arrest. No other action was taken until March 31, 2006, when defendant was arrested. On April 20, 2006, an indictment was filed against defendant for criminal sexual assault occurring on May 20, 2002. On December 1, 2006, defendant filed a pretrial motion attacking the indictment, alleging that it was returned outside the statute of limitations. The motion was denied. On November 11, 2007, following the trial, the court denied defendant's motion to vacate the verdict due to a statute of limitations violation. Defendant timely appeals.
The defendant appeals the denial of the motion to dismiss the indictment and contends the indictment on its face is defective because it was filed after the statute of limitations had expired. Defendant further contends that if the State had intended to raise any exception to the statute of limitation, the grounds to apply the exception must be alleged in the indictment.
Because review of a trial court's denial of defendant's motion to dismiss the indictment based on the violation of the statute of limitations involves a legal issue, we review de novo. People v. Mann, 341 Ill.App.3d 832, 836, 276 Ill.Dec. 530, 794 N.E.2d 425 (2003).
The statute of limitations in Illinois requires that, unless specifically provided for elsewhere, a defendant be prosecuted for any felony offense within three years of the commission of that offense. 720 ILCS 5/3-5(b) (West 2002). The felony offense defendant was convicted of does not provide for an exception to the statute of limitations. Therefore, in the instant case the pertinent question for the court to determine is what constitutes the prosecution of an offense when that offense is a felony. The legislature has defined the term "prosecution" to mean "all legal proceedings by which a person's liability for an offense is determined, commencing with the return of the indictment or the issuance of the information." 720 ILCS 5/2-16 (West 2002). Furthermore, "a prosecution may be commenced by: (a) A complaint; (b) An information; or (c) An indictment." 725 ILCS 5/111-1 (West 2002). The legislature also distinguished between the prosecution of a felony and other offenses, providing in part: while "[a]ll other prosecutions may be by indictment, information or complaint." 725 ILCS 5/111-2(a), (b) (West 2002).
In response to defendant's contention, the State maintains that the filing of the complaint for preliminary examination and the issuance of an arrest warrant tolled the statute of limitations. It argues that the prosecution of this offense was commenced upon initiation of adversarial proceedings. In support, the State first notes that Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 417 (1972), established that in determining when the sixth amendment right to counsel attaches, adversarial proceedings must be initiated by way of formal charge, preliminary hearing, indictment, information or arraignment. Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. Additionally, the State argues that People v. Curtis, 132 Ill.App.3d 241, 87 Ill.Dec. 170, 476 N.E.2d 1162 (1985), is helpful in determining when adversarial proceedings are initiated. Curtis holds that the initiation of adversarial proceedings triggers the accused's sixth amendment right to counsel and this occurs when the State files a felony complaint in circuit court. Curtis, 132 Ill.App.3d at 247, 87 Ill.Dec. 170, 476 N.E.2d 1162. After Curtis the courts further narrowed when the right to counsel would attach, requiring significant prosecutorial involvement in initiating adversarial proceedings. People v. Young, 153 Ill.2d 383, 404-05, 180 Ill.Dec. 229, 607 N.E.2d 123 (1992). A complaint could only be an initiation of adversarial proceedings affording a right to counsel if the complaint were filed by the State's Attorney. People v. Garrett, 179 Ill.2d 239, 250, 227 Ill.Dec. 921, 688 N.E.2d 614 (1997). The courts were evaluating the question based upon the actions of the State by looking at what documents had been filed rather than looking at what was occurring at certain stages in the prosecutorial process that would require the accused be represented by an attorney. The right to counsel is a protection that has most recently been revisited by the United States Supreme Court in Rothgery v. Gillespie County, 554 U.S. ___, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). The Supreme Court held that the right to counsel attaches when the accused is brought before a judicial officer and is told of the formal accusation against him and his liberty is subject to restriction. Rothgery, 554 U.S. at ___, 128 S.Ct. at 2583, 2592, 171 L.Ed.2d at 374-75, 383. The court in Rothgery specifically rejects the argument that right to counsel is invoked upon the filing of formal documents or upon the direct involvement of a prosecutor. Rothgery, 554 U.S. at ___, 128 S.Ct. at 2590, 171 L.Ed.2d at 381.
The State argues that the same reasoning used in those cases applies to statute of limitations cases in order to determine when the State has commenced prosecution, thereby tolling the statute. In the instant case a complaint for preliminary examination was filed prior to the expiration of the statute. Consequently, the State maintains the indictment was not deficient and, accordingly, it was not required to plead any grounds that would have extended or suspended the statute of limitations.
We believe the State's argument that the tolling of the statute of limitations is analogous to when the right to counsel is invoked is wrong. The sixth amendment right to counsel is not akin to the tolling of the statute of limitations. Rothgery holds the right to counsel is triggered by the initiation of adversarial proceedings. Rothgery, 554 U.S. at ___, 128 S.Ct. at 2592, 171 L.Ed.2d at 383. The statute of limitations is tolled when the State commences prosecution. 725 ILCS 5/111-1 (West 2002). However, what commences prosecution in tolling the statute of limitations is not analogous to what initiates adversarial proceedings for right to counsel purposes. The tolling of the statute of limitations occurs when the State commences prosecution, and the attachment of right to counsel occurs when the State initiates adversarial proceedings. Although both of these occasions occur at the earlier stage of criminal proceedings and they appear as though they may be the same, they are not.
The purpose of providing limitations periods for offenses is to minimize the danger of punishment for conduct that occurred in the distant past, to encourage the State to be diligent in its investigation and to provide the trier of fact with evidence that is fresh and not distorted or diluted by the passage of time. People v. Berg, 277 Ill.App.3d 549, 552-53, 214 Ill. Dec. 296, 660 N.E.2d 1003 (1996), citing People v. Gouveia, 467 U.S. 180, 191-92, 104 S.Ct. 2292, 2299, 81 L.Ed.2d 146, 156 (1984). The Court in Rothgery raises the distinction between the sixth amendment right to counsel and fifth amendment protections, including statutes of limitations. Rothgery noted that the two...
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