People v. Martinez

• Decision Date: 05 October 2011
• Docket Number: No. 2-10-0498,2-10-0498
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ESTEBAN MARTINEZ, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,

v.ESTEBAN MARTINEZ, Defendant-Appellee.

No. 2-10-0498

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Opinion filed October 5, 2011

Appeal from the Circuit Court of Kane County.

No. 06-CF-1731

Honorable Timothy Q. Sheldon, Judge, Presiding.

JUSTICE BIRKETT delivered the judgment of the court, with opinion

Justice Hudson concurred in the judgment and opinion.

Justice McLaren specially concurred, with opinion.

OPINION

¶ 1 The State appeals from an order of the trial court, following a jury trial, purporting to acquit defendant of charges of aggravated battery (720 ILCS 5/12-4(a) (West 2004)) and mob action (720 ILCS 5/25-1(a)(1) (West 2004)). The State argues that the trial court abused its discretion in refusing to grant the State a continuance on the day of trial. Defendant not only disagrees but claims we lack jurisdiction over this appeal. For the reasons that follow, we find that we have jurisdiction, and we reverse the trial court's judgment and remand this case for further proceedings.

¶ 2 BACKGROUND

¶ 3 We set forth in some detail a chronology of events below, as it is integral to the issues at hand. On July 7, 2006, the State filed a two-count complaint charging that defendant committed aggravated battery and mob action against Avery Binion and Demarco Scott. On August 9, the State filed an indictment alleging the same offenses against the same victims. On November 9, defendant was arraigned and bail was set at $30,000. On December 7, defendant filed a motion to reduce bail. The court granted the motion, and defendant posted bond. Also on December 7, the public defender was granted leave to withdraw and private counsel was appointed. By agreement, the court continued the case for a pretrial conference on December 21. On that date, defendant filed a motion for discovery. By agreement, the court continued the case to February 15, 2007, for "402/FPTC," or final pretrial conference. The court's order notes that defendant was admonished under "402," or Illinois Supreme Court Rule 402 (eff. July 1, 1997), and that he consented to the continuance.

¶ 4 On January 29, 2007, defense counsel moved to withdraw. On February 15, the court granted counsel leave to withdraw and, by agreement, set the matter for status on April 12. On that date, the case was again continued by agreement to May 24 for status. On May 24, the public defender was appointed and the case was again continued by agreement to June 21 for status. The court's order entered on June 21 notes that "402 [was] requested" and that defendant was admonished and consented. The case was continued by agreement to August 2 for status. On August 2, defendant did not appear, and the court continued the matter, by agreement, to August 23 for status. On August 23, defendant again was absent. His bond was forfeited and an arrest warrant was issued. Defendant failed to appear at two further court dates in October and November 2007, and ultimately he was taken into custody on July 12, 2008. Defendant posted bond again on July 16. On July 24, the case was continued to August 28 on motion of defendant. On August 28,defendant was arraigned, the public defender was appointed, and the matter was continued by agreement to September 26 for status.

¶ 5 On September 8, 2008, defendant filed a speedy-trial demand and another discovery demand. Between September 26, 2008, and May 7, 2009, there were several further agreed continuances for status. The court's order of May 7 stated that the "State elects on this case" and set the matter for final pretrial conference on July 31 and for trial on August 3. On May 19, the State filed a discovery disclosure to the defense. On July 20, the State moved to continue the trial date of August 3 because one witness, a police detective, was unavailable until August 17 and because Binion and Scott "ha[d] not been located." The State represented that all three witnesses were material. On July 24, the State issued subpoenas to Binion and Scott. An order entered on July 31, the date of the pretrial conference, showed that defendant did not appear in court. The order granted the State's motion for a continuance and set the matter for August 3 for "appearance of defendant" and to "reset trial." On August 3, the court set the matter for pretrial conference on September 25 and for trial on September 28.

¶ 6 On the pretrial date of September 25, 2009, the State filed another motion for a continuance based on its failure to locate Binion and Scott. Over defendant's objection, the trial was rescheduled to November 9. On October 13, the State again issued subpoenas to Binion and Scott. On November 9, defendant was late to court, and, on the State's motion, the court continued the trial to November 30. On November 25, defendant moved for a continuance because defense counsel had a scheduling conflict with the current trial date. The court rescheduled the trial to March 8, 2010. On December 15, 2009, well in advance of the trial date, the State moved for a continuance due to a scheduling conflict with one of its witnesses. Over defendant's objection, the court postponed the trial to March 29, 2010.

¶ 7 On February 1, 2010, the State issued additional subpoenas to Binion and Scott to appear on March 29. On March 29, the trial court entered two orders. The first order granted the State's "motion for a continuance" and set the matter for trial on May 17. There is no written motion in the record, and the grounds for this motion are not otherwise evident. The second order directed that rules to show cause issue against Binion and Scott, returnable on May 10. The record does not reflect what transpired on the return date of May 10. On April 14, the State issued a subpoena to Scott, to appear on May 17. (No subpoena for Binion appears in the record, but defendant does not dispute that a subpoena was issued.)

¶ 8 On May 17, the parties appeared before the court for the scheduled jury trial. When the case was called, this exchange immediately followed:

MS. CREEKMUR [Assistant State's Attorney]: *** At this time the State is not ready. We would be asking for a continuance even for just a few moments, or if we could have just a little bit longer to see if our witnesses [Binion and Scott] will be arriving. They are not here yet. I am hopeful that they will be here today.

THE COURT: Well, here's what I can do for you ***. I don't wish to wait all morning long for these people to stroll in, but I will allow us to get started, but I won't swear the panels until I have a whole jury. How is that?

MS. CREEKMUR: Yes, your honor. If we could not swear them in, and before swearing them in if I could have a momentary recess.

THE COURT: What I'll do is we'll pick a panel, send them back, pick the next panel, send them back, pick the last panel, send them back, pick your alternate or alternates, send them back. I'll give you ten minutes, bring them out and swear them in or move to dismiss your case if you wish.

MS. CREEKMUR: Thank you, your Honor.

MS. WILLET [defense counsel]: Judge, I am objecting. I'm asking for a continuance. My client is not present yet. I certainly would ask for a short period of time if my continuance is not granted for him to be present before selecting the jury due to the prejudice that will occur even if he arrives late. That's my request, Judge.

THE COURT: Motion denied. As soon as the jury is up, we're going to start."

¶ 9 What follows in the report of proceedings is this notation: "WHEREUPON a jury was selected by the State and the Defense, which was reported but not transcribed herein." When the transcription resumed, the court asked whether the State's witnesses had arrived. The State replied that they had not and that the State was filing a written motion to continue the trial in order to arrange for the appearance of Binion and Scott. The written motion sought "an order continuing the Jury trial in the *** case" and stated that this relief would not "greatly prejudice" the defense but that the State would indeed be "greatly prejudiced" if the relief were denied. After the State announced that it had filed a written motion for a continuance, this colloquy followed:

"MS. CREEKMUR: Your Honor, it is now 10:06 [a.m.] We have not seen [Binion or Scott], both witnesses. We are unable to proceed without them, and we would be asking for a continuance.

THE COURT: Have you sent the police out to knock on their door?

MS. CREEKMUR: I believe we've been checking on that and unable to locate them as of now. They also have cases that are up before your Honor this morning.

THE COURT: Yes, they have. ***

You have service on both these gentlemen?

MS. CREEKMUR: Mr. Scott, I believe, was served some time ago. They both did appear last week in court, were given court orders to appear today.

THE COURT: Okay. Anything further you would like to say on your motion to continue?

MS. CREEKMUR: No, your Honor.

THE COURT: Defense?

MS. WILLET: Judge, we certainly are objecting to any continuance, continuing in our demand for speedy trial.

THE COURT: I will make these findings: The case before the Court began on July 7, 2006. In two months we will then be embarking upon half a decade of pending a [sic] Class 3 felony. [Binion and Scott] are well known in Elgin, both are convicted felons. One would believe that the Elgin Police Department would know their whereabouts. They were ordered to be in court today. The Court will issue body writs for both of these gentlemen.

In addition, the State's list of witnesses indicates twelve witnesses. Excluding Mr. Scott and Mr. Binion, that's ten witnesses. The Court would anticipate it would take every bit of today and most of tomorrow to get through ten witnesses. By then the People may have had a chance to execute the arrest warrant body writs for these two gentlemen.

The Court will deny the motion for continuance. I will swear the jury in in 15, 20 minutes. Perhaps you might want to send the police out to

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