People v. Sanchez
| Decision Date | 22 July 2009 |
| Docket Number | No. 3-07-0777.,No. 3-07-0778.,3-07-0777.,3-07-0778. |
| Citation | 912 N.E.2d 361 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose L. SANCHEZ, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Bryon Kohut, Office of State Appellate Defender, Ottawa, IL, for Appellant.
Terry A. Mertel, Deputy Director State's Attorneys Appellate Prosecutor, Dawn D. Duffy, State's Attorneys Appellate Prosecutor, Ottawa, IL, James Glasgow, State's Attorney, Joliet, IL, for Appellee.
The defendant, Jose L. Sanchez, was convicted of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(2) (West 2004)) in case No. 05-CF-1512. The defendant was also convicted of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)) and unlawful possession of a firearm (720 ILCS 5/24-3.1(a)(2) (West 2006)) in case No. 06-CF-829. The trial court sentenced the defendant to 19 years in prison for aggravated battery with a firearm in case No. 05-CF-1512. That sentence was to run consecutive to the concurrent sentences of 3 and 11 years in prison for unlawful possession of a firearm and aggravated discharge of a firearm, respectively, in case No. 06-CF-829. The defendant appeals, arguing that: (1) his trial counsel was ineffective because his counsel failed to protect and preserve his statutory right to a speedy trial in case No. 05-CF-1512; (2) he was denied a fair trial for aggravated battery with a firearm in case No. 05-CF-1512 because the State elicited testimony from a police officer that the defendant did not mention an alibi, thereby improperly introducing evidence of the defendant's post-arrest silence, and the State repeated the improper evidence during rebuttal closing argument; (3) he was denied a fair trial for aggravated battery with a firearm in case No. 05-CF-1512 when the State committed prosecutorial misconduct by stating in rebuttal closing argument that: (a) it would not have introduced the victim's photographic lineup identification of the defendant if the lineup had been suggestive; and (b) it would have presented the testimony of other witnesses to the shooting had there been any other witnesses; (4) the trial court erred in ordering him to pay a $4,212 public defender reimbursement fee without notice and a hearing; and (5) he is entitled to a credit of $5 per day for time served in presentence custody. We affirm in part, reverse in part, and remand for further proceedings.
On July 24, 2005, the defendant was arrested, and on July 25, 2005, he was charged by complaint, which was later supplanted by an indictment, with aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 2004)) in case No. 05-CF-1512. On July 25, 2005, he made a written demand for a speedy trial. On December 17, 2005, the defendant posted bond and was released.
On April 9, 2006, the defendant was arrested, and on April 11, 2006, he was charged with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)) and unlawful possession of a firearm (720 ILCS 5/24-3.1(a)(2) (West 2006)) in case No. 06-CF-829. On April 11, 2006, the defendant made a written demand for a speedy trial but did not post bond in case No. 06-CF-829. On May 26, 2006, the State elected to proceed first on case No. 05-CF-1512.
On August 10, 2006, the State filed an amended indictment in case No. 05-CF-1512, charging the defendant with aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 2004)), possession of a firearm without a Firearm Owner's Identification (FOID) Card (430 ILCS 65/2(a)(1) (West 2004)), possession of firearm ammunition without a FOID Card (430 ILCS 65/2(a)(2) (West 2004)), and two counts of unlawful possession of a firearm (720 ILCS 5/24-3.1(a)(1), (a)(2) (West 2004). On August 14, 2006, the defendant filed a motion to sever the charge of aggravated battery with a firearm from the other offenses in the indictment because the firearm used in the aggravated battery with a firearm offense was not the same firearm that was alleged in the other offenses. On August 29, 2006, the trial court granted the defendant's motion to sever.
On September 5, 2006, the State elected to proceed to trial on the four charges related to possession of a firearm in case No. 05-CF-1512. The trial began on October 3, 2006, and on October 5, 2006, a jury acquitted the defendant of the charges. After the acquittal, the following colloquy occurred:
"THE COURT: We are outside the presence of the jury.
The defendant having been found not guilty in this particular case, any other matters—there is another case left, correct?
At the October 13, 2006, status hearing, the State requested that case No. 06-CF-829 be set for trial on December 4, 2006. The defendant confirmed that the date was acceptable, and the trial court set the case for trial on that date. The parties and the trial court also discussed how many days remained on the statutory speedy trial term. The trial court thought that a new period of 160 days began after the acquittal but suggested that the parties research the issue.
On December 4, 2006, the State announced that it was ready for trial but noted that it failed to give the defendant certain discovery. The defendant stated that he would not be ready until he had seen the discovery. The trial court set the matter for the next day on the defendant's motion. On December 5, 2006, the defendant moved for a continuance, and the trial court continued the case until January 9, 2007.
On January 9, 2007, the defendant filed a motion to suppress statements in case No. 06-CF-829. On January 10, 2007, the trial court denied the motion and proceeded to trial on case No. 06-CF-829. On January 12, 2007, a jury found the defendant guilty of aggravated discharge of a firearm and unlawful possession of a firearm. The trial court scheduled sentencing for March 13, 2007, on case No. 06-CF-829 and stated that it would set a trial date for case No. 05-CF-1512 on that date.
On March 13, 2007, the trial court was unavailable, and sentencing was reset for the next day. On March 14, 2007, the State requested a continuance of sentencing so that it could proceed to trial on case No. 05-CF-1512 and then have sentencing on all the charges. The defendant stated that he intended to set case No. 05-CF-1512 for trial and that he did not object to continuing the sentencing in case No. 06-CF-829. The trial court set case No. 05-CF-1512 for trial on April 18, 2007, and continued the sentencing in case No. 06-CF-829.
The defendant, either on his own motion or by agreement, subsequently continued case No. 05-CF-1512 on several occasions until June 20, 2007. On June 20, 2007, the defendant objected on speedy trial grounds to the State's motion to continue the case until June 25, 2007, but the trial court granted the motion. On June 22, 2007, the trial court struck the trial date of June 25, 2007, and set it for June 28, 2007. On June 28, 2007, the parties, by agreement, continued the case for trial on July 9, 2007.
The defendant's jury trial for the offense of aggravated battery with a firearm in the case No. 05-CF-1512 began on July 9, 2007. The following evidence, relevant to this appeal, was presented.
Jose Campos testified that at about 6 p.m. on July 23, 2005, he was riding his bicycle on Hickory Street in Joliet, Illinois. He was about three blocks from his house and was coming from a convenience store. He stated that near the intersection of Hickory Street and Granite Street, he saw a gold car traveling in the same direction as he. Campos testified that the defendant was in the front passenger seat and that two other people were in the car. The car went ahead of him and circled the block so that the next time he saw the car it was driving east on Granite Street, which was the wrong direction.
When Campos saw the car on Granite Street, he rode his bicycle into a yard because the car had sped up and he thought the passengers were going to do something to him. He testified that when he looked at the car again, he saw the defendant in the front passenger seat. He saw the defendant pull out a firearm and start shooting in his direction. Campos jumped off his bicycle and ran when he heard the gunshots. He noticed after the shooting that he had been shot in the thigh. He went to Stone City Pizza, which was about 10 feet away, to get help, and he was taken from there to the hospital.
Campos testified that the car was stopped when he saw it the second time, that he observed the defendant from about 20 to 25 feet for about 10 seconds before the gunshots were fired, and that he heard about 6 or 7 gunshots. He stated that it was sunny at the time of the shooting and that nothing obstructed his view of the defendant.
Campos testified that the police questioned him at the hospital on the day of the shooting. The police gave him a photographic lineup with six photos and asked him to identify his shooter. Campos identified the defendant from the lineup, and he testified that neither the police nor anyone in the hospital had suggested whom he should pick from the lineup. Campos testified that his mother came into his hospital room after the identification. She said that she heard someone named Honeycomb, which was the defendant's nickname, committed the shooting. Campos stated that...
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