People v. Ortiz

Decision Date24 September 1992
Docket NumberNo. 71297,71297
Citation151 Ill.2d 1,600 N.E.2d 1153,175 Ill.Dec. 695
Parties, 175 Ill.Dec. 695 The PEOPLE of the State of Illinois, Appellant, v. Anthony ORTIZ, Appellee.
CourtIllinois Supreme Court

Neil F. Hartigan and Roland W. Burris, Attys. Gen., Springfield, Gary L. Spencer, State's Atty., Morrison (Rosalyn B. Kaplan, Sol. Gen., Terence M. Madsen and Steven J. Zick, Asst. Attys. Gen., Chicago, Kenneth R. Boyle, John X. Breslin and Gary F. Gnidovec, Office of the State's Attys. Appellate Prosecutor, Ottawa, of counsel), for the People.

Rolfe F. Ehrmann, Ehrmann, Gehlbach & Beckman, Dixon, for appellee.

Justice CUNNINGHAM delivered the opinion of the court:

On October 27, 1988, an information was filed in Whiteside County charging defendant, Anthony Ortiz, with two counts of aggravated sexual abuse of his then-girlfriend's nine-year-old daughter. At the bench trial, and after several witnesses had testified, defense counsel moved for dismissal because the State's Attorney stated that the chief witness was not in the courthouse and would not be available for two hours. The trial court denied the State's motion for continuance and granted defendant's motion to dismiss. The State filed a motion to reconsider. The circuit court granted the motion. At a subsequent trial, conducted by a new judge, the circuit court found defendant guilty. Defendant appealed.

The appellate court reversed the judgment of the circuit court and vacated defendant's conviction. (207 Ill.App.3d 569, 152 Ill.Dec. 473, 566 N.E.2d 1.) From this judgment, the State appeals, raising only one issue: whether double jeopardy attached, preventing the second trial and conviction. We reverse.

The facts are as follow. After the information was filed on October 31, 1988, the trial court ordered the parties to produce discovery within 28 days. On February 6, 1989, the defendant entered a plea of not guilty, a waiver of a jury trial, and a demand for a bench trial. The bench trial was scheduled for February 24, 1989, at 10:30 a.m. On February 21, 1989, the State and defendant filed a joint motion for a continuance. The trial court granted the motion and scheduled the bench trial for April 14, 1989, at 10:30 a.m.

At the next trial setting of April 14, 1989, all parties were present for the bench trial. However, the State filed a motion to compel discovery and a continuance attributable to the defendant for failure to produce discovery. In reply to the State's motion to comply with discovery, defendant tendered discovery on the trial date. The trial court granted the motion to continue and attributed the continuance to defendant. The State withdrew its motion to compel discovery. The trial court continued the trial to Monday, April 24, 1989, at 11 a.m.

On April 24, 1989, the case proceeded to trial. After opening statements by the State and the defense, the State proceeded to call its witnesses.

The first witness was Anita Johnson, a registered nurse for the Unit 5 school district at Willard School. She stated that the victim attended Willard School at the time of the incident. She was present when an organization through the YWCA made a presentation to the third, fourth and fifth grades at the school. The Child Assault Program workers presented the program. The program used role playing to describe situations where a child would be uncomfortable, e.g., the classroom bully or the very affectionate uncle. Johnson was present during the presentation.

After the presentation, the victim initially spoke to a Child Assault Program worker. Johnson was then called in to talk to the victim. At that time, the victim related to Johnson that her mother's boyfriend, the defendant, had come home drunk one night, crawled into bed, took his hand and slid it down the front of her panties. He also took her hand and put it down the front of his pants. Johnson stated that the victim was very upset as she told her about the incident. Johnson stated that the victim's head was down and that she was fighting back tears. The victim was also very uncomfortable. Johnson stated that she filed a report with the Department of Children and Family Services by calling the hotline and submitting a written report.

Johnson was familiar with the victim, who was nine years old and in the fourth grade. Johnson had known the victim for one school year. During that time, she saw the victim interact with other children about once or twice a week. Prior to the victim's revelations, Johnson had seen the victim a few times for playground-type injuries.

Stacey Lawrence testified next. She stated that she was 10 years old and in the fifth grade. She knew the victim because they were in the fourth grade together, but with different teachers. She stated that the victim was her friend.

She recalled one Friday evening during which the victim's mother picked up her and two other friends (Tricia and Zenia) at the recreation center and took them home. The defendant was not with the victim's mother. She recalled arriving home at 9:15 p.m. At approximately 11 or 11:30 p.m. that evening, she received a phone call from the victim. The victim started to talk for a while and then she started to cry. After the victim cried, she talked for about 15 minutes. The victim told her that she was home alone and that her mother and defendant were about to arrive home. The victim stated that defendant might do something to her. During the phone conversation, the victim stated that she was in the bathroom or in her room with the door locked.

Gail Ortiz testified to the following. She and her daughter moved in with defendant in October 1987. On October 24, 1988, she married the defendant. During the course of their relationship, defendant became drunk on four or five occasions. She recalled one evening in which the defendant started to drink at the VFW. Prior to going to the VFW, she picked up her daughter and took her to the recreational center. She then drove to the VFW in order that defendant could follow her home. After taking defendant's car home, she and defendant went to another bar so he could continue drinking. Gail returned home, but later left to pick up the victim at the center around 9:30 or 10 p.m. After she took her daughter home, she waited for defendant to call for a ride. She picked up defendant at approximately 10 or 10:30 p.m.

While Gail Ortiz was testifying, the State requested to approach the bench. The State told the judge:

"The victim is in school in Pekin, Illinois. They knew that the court date was today. I think her father must have forgotten the date. I don't know why she isn't here. Do you want me to continue with this witness?"

At that time, defense counsel requested a motion to dismiss. The judge replied that it would recess after Gail Ortiz's testimony until 1 p.m. The court stated further that since the victim was in school, she would not be able to be at the trial. The State replied that its last continuance was because it had not received discovery. The State also stated that it did not want to ask for a continuance. The court replied, "You can't," and told the witness, Gail Ortiz, to step down. After a short recess was taken, the State requested a continuance because the victim could not arrive until 2:30 p.m. and it was 11:45 a.m. Defense counsel objected to the motion and requested a motion to dismiss because "the State has long had an opportunity to prepare this case which was filed last October and called for trial this date. The defendant is in jeopardy, and if the State cannot produce its witness in a timely fashion on the day of trial, then I would request that the case be dismissed." The court stated: "The motion to dismiss is heard and allowed."

Four days later, on April 28, 1989, the court held a hearing on the State's motion to reconsider the order dismissing the cause and denying its request for continuance. Defense counsel waived presence of defendant at the hearing.

The first witness called to testify was Darryl Alcorn, father of the victim. He stated that he recalled that a bench trial was set for April 14, 1989; however, the case was continued. He stated that the victim was present prior to testimony beginning on April 14. However, the State's Attorney advised him that the trial was continued. At that time, he even wrote the new trial date of April 24 in a book entitled "King's Fools." He stated that since he resided in Pekin, Illinois, with his daughter, approximately 108 miles from Morrison, it would take approximately 1 hour and 45 minutes to drive the distance and two hours if he obeyed the speed limit.

He stated that on April 14 he was so nervous and upset that although he wrote down the 24th, he only recalled hearing the new trial date was in two weeks. Thus, he began to think of the next trial date as the 28th instead of the 24th. He even went to work and asked for the 28th off. He was surprised when the State's Attorney's office called at 11:25 a.m. on the 24th and told him to come into court. At that time, he was willing to bring his daughter to court, but he would arrive in 2 1/2 hours. The victim was still willing to testify.

Susan Noble, a victim assistant for the Whiteside County State's Attorney's office, stated that on the date of the trial she was aware of four witnesses at the courthouse. The witnesses were Stacey Lawrence, Anita Johnson, Ron Posoff and Marie Flosie. Only Lawrence and Johnson had testified at the time of the dismissal. Before trial began, she did attempt to contact Darryl Alcorn at several places. When she contacted the victim's school, she discovered that the victim was still in school. At that point, she told the State's Attorney about the situation. After three to five minutes, she received a phone call from Darryl Alcorn stating that he would come to the courthouse immediately. Although her job is to contact the witnesses to confirm dates and times, she was not sure if she advised Darryl Alcorn that he was to be...

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