People v. Parker

• Decision Date: 27 August 1990
• Docket Number: No. 1-88-1551,1-88-1551
• Citation: 202 Ill.App.3d 454,559 N.E.2d 1068
• Parties: , 147 Ill.Dec. 728 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Dirk PARKER and Darryl Jackson, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1068

559 N.E.2d 1068

202 Ill.App.3d 454, 147 Ill.Dec. 728

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Dirk PARKER and Darryl Jackson, Defendants-Appellees.

No. 1-88-1551.

Appellate Court of Illinois,

First District, First Division.

Aug. 27, 1990.

State's Atty.'s Office of Cook County, Chicago (Cecil A. Partee, Inge Fryklund and Sara Dillery Hynes, of counsel), for defendants-appellants.

Blair, Russell & Cole, Chicago (Chester L. Blair, of counsel), for plaintiff-appellee.

Justice MANNING delivered the opinion of the court:

The defendants, Dirk Parker and Darryl Jackson, were charged by information with aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, pars. 12-14(a)(1), (a)(4)), aggravated kidnapping (Ill.Rev.Stat.1985, ch. 38, pars. 10-2(a)(3), (a)(5)), and armed violence (Ill.Rev.Stat.1985, ch. 38, par. 33A-2). The defendants were also charged with the lesser included offenses of criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par, 12-13(a)), kidnapping (Ill.Rev.Stat.1985, ch. 38, pars. 10-1(a)(3), (a)(2)), and aggravated unlawful restraint (Ill.Rev.Stat.1985, ch. 38, par. 10-3(a)).

The defendants filed a motion to dismiss the charge on the grounds of double jeopardy. The trial court granted the motion, and the State appeals from the order of dismissal pursuant to Supreme Court Rule 604(a)(1). (Ill.Rev.Stat. (1985), ch. 110A, par. 604(a)(1).) The facts pertinent to this appeal are set forth below.

This matter was originally set for trial on November 18, 1987, before Judge Matthew J. Moran after numerous continuances. On that date, both sides answered ready; however, Judge Moran was presiding over another jury trial which was due to be completed the following day. The assistant State's Attorney requested that the case be set for November 30, 1987, which he added was the last day of the term. Judge Moran expressed a reluctance to set the case on the last day of the term and suggested that jury selection begin on November 25, 1987, the day before the Thanksgiving recess. Defense counsel objected to beginning jury selection on that day, contending that the delay between the selection of the jury and the presentation of evidence would be detrimental and unfair to the defendants due to the holiday recess. The State then agreed with the judge, and thereafter, an exchange of words took place between defense counsel and the court, as set forth below:

"MR. BLAIR [defense attorney]: We are ready for trial. We demand trial, jury trial.

THE COURT: What's the State's position?

MR. RONKOWSKI [Assistant State's Attorney]: Last day of the term is the 30th.

THE COURT: Well, this jury is going out tomorrow morning, so they will be out by 1:00 o'clock. Is the State saying we can hold it on call?

MR. KONCZAL [Assistant State's Attorney]: The problem is if we picked a jury tomorrow we wouldn't be able to start testimony until Thursday. We would really suggest the 30th to the Court, the last date of the term.

THE COURT: I hate to set the last date of the term.

MR. KONCZAL: I asked counsel to go by agreement to that date.

THE COURT: I checked with the jury commissioner, and he sees no problem with picking a jury on the 25th even though there will be no court on the 26th or 27th.

* * * MR. BLAIR: The defendants here are on trial, and to pick a jury and to have them hanging over the weekend without any evidence coming to them I think would be fortuitous to say the least.

* * *

THE COURT: All right. I disagree. The jury is not going to be sequestered. It's not going to hear any evidence on the date it's picked. All we're going to do is pick the jury and start the testimony on the next open court date.

MR. BLAIR: Which would be the 30th.

THE COURT: Which would be Monday, the 30th.

MR. BLAIR: Well, Judge, let's start at 6:00 o'clock in the morning on the 30th.

MR. KONCZAL: I'll go by agreement with him. I'm not trying to put counsel in a bind. Whatever counsel wants is fine.

THE COURT: Your last date of the term is the 30th.

MR. KONCZAL: Actually it may be the 29th. I would rather pick on the 25th as Your Honor has suggested.

* * *

THE COURT: They are ready to go on the 30th, but they just told me the term may run on the 28th or 29th. So I don't want to get myself in that situation.

MR. BLAIR: The term doesn't run on the 28th or 29th. The term runs on the 30th. I spent the last 20 minutes counting the term. They spent time counting the term. At least that's the way it appears to me.

* * *

THE COURT: I think the Court is responsible too when matters are not properly brought to trial, and I like to see justice done in the courtroom and not individuals convicted or acquitted on technicalities, and I'm not going to be a part of that. I'll set this for the 25th for picking of the jury. If you come in that day and for any good reason do not want to pick the jury until the 30th, I'll set it motion defendant to pick it on the 30th, but I'm not going to take a chance on miscalculation.

MR. BLAIR: Judge, I think that you are now abusing--by that procedure you're abusing the defense for the benefit of the prosecution, and you've just told me--

THE COURT: Sir--

MR. BLAIR: You just told me that you do not intend to abuse either side.

THE COURT: That's true, sir.

MR. BLAIR: You said you do not want them to lose the case on a technicality.

THE COURT: I don't want any case decided on a technicality.

MR. BLAIR: Then you ask me to pick a jury--

THE COURT: I resent your remarks, sir.

MR. BLAIR: Judge, I can understand that. I can understand your resenting them. I resent what is about to happen to my clients. These poor fellows here are before you for justice. We are only asking for the same fairness that you give to the State.

THE COURT: Sir, I resent your remark that I give justice only to the state's attorneys or prosecutors, and I do not give justice to defendants that appear before me.

MR. BLAIR: I didn't say that.

THE COURT: That's your implication, sir, and I resent that, and I don't care if you're going to be head of the top bar association of this state. You are a man well respected, and I've respected you, sir, up until the last few minutes--

MR. BLAIR: You don't respect me anymore?

THE COURT: I do respect you, sir, but I do not respect the remark that you just made that I do not render justice to defendants, and I'm not about to render justice to your clients. I resent that remark.

MR. BLAIR: May we have the record read so that the Court can see that what it's saying is not what I said? May we have the record read? Would you please read back my remarks--

THE COURT: Sir, I have a jury in the back and I intend to proceed with that case. Now if I've offended you, I do so unintentionally, but you have offended me, sir. I'm requesting to hold this case on trial on call everyday until we're ready if that suits your convenience. Otherwise I'm going to set it for the 25th for picking a jury. I can pick a jury on this case tomorrow afternoon. If we're not free or if you're not free, we'll hold it on call day-to-day. I have other cases on the call everyday, but I'll set those aside if you feel that I'm taking advantage of you or your clients.

MR. BLAIR: Well, Judge, that procedure--I'm not talking about the Court, and I think it's unfair to the defendants for the Court to take the remarks that I have made and become disturbed with the case because they are the ones on trial; I'm not, Judge.

THE COURT: I'm not disturbed with the defendants. I am disturbed with the remarks you made. I'm not disturbed with the two defendants. I don't know them at all. I do know you, sir, and I respect you, and I am surprised you could make such a remark.

MR. BLAIR: How can I respond if you never let me tell you what I'm saying, Judge. I said to you that I believe it would be unfair to these defendants to have the case set for the 25th. I stand on that.

* * *

I hope the fact that I have been or am an officer of the Chicago Bar doesn't work against my clients. I never mentioned it. Your Honor says that because of that I should understand this or thus. I certainly have no special feeling or feel that I have any special benefit that accrues to me. Indeed I'm more humble under the circumstances than I would be otherwise, but I say to you, Your Honor, to set that case on the 25th, the jury would go out the night of the 25th--

THE COURT: The jury would not go out the 25th. The jury would be excused.

MR. BLAIR: They would go home.

THE COURT: That's right, and instructed to come back on the 30th. I can't see how the defendants or the State would be prejudiced by that procedure.

MR. BLAIR: They will spend the weekend talking about aggravated sexual assault, Judge, and everybody will be giving them their opinions about what aggravated sexual assault is. That's the basis.

THE COURT: If you think the jury is going to disregard the admonitions of the Court, I would allow you to make appropriate motions on the 30th or make an inquiry of whether they discussed the case in violation of the Court's order, but I can't assume the jurors are going to violate the Court's instructions over the Thanksgiving holiday period, sir. If the parties cannot agree on a date, as I indicated I'm concerned about the fourth term matters, and I will set it order of Court for picking of jury on the 25th.

MR. BLAIR: May we have the record reflect that the defendants object?

THE COURT: The record will so show. Counsel's trial demands will also show.

MR. BLAIR: Thank you, Judge.

MR. RONKOWSKI: Is that motion State?

THE COURT: That will be order of court."

The judge persisted in setting November 25, 1987, as the date on which the jury would be selected.

On November 25, 1987, defense counsel arrived at the courtroom approximately one hour late and explained to the court that there were some preliminary matters to be addressed. Judge Moran stated that he would excuse the venire for lunch. Before excusing them...