People v. Sojak

• Citation: 652 N.E.2d 1061,273 Ill.App.3d 579
• Decision Date: 02 June 1995
• Docket Number: No. 1-93-1871,1-93-1871
• Parties: , 210 Ill.Dec. 85 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond SOJAK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1061

652 N.E.2d 1061

273 Ill.App.3d 579, 210 Ill.Dec. 85

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond SOJAK, Defendant-Appellant.

No. 1-93-1871.

Appellate Court of Illinois First District, Fifth Division.

June 2, 1995.

Rehearing Denied July 12, 1995.

[210 Ill.Dec. 86] Jack O'Malley, Chicago, for appellee.

[210 Ill.Dec. 87] Barbara Kamm, Asst. Appellate Defender, Chicago, for appellant.

Justice THOMAS J. O'BRIEN delivered the opinion of the court:

Following a bench trial, the circuit court found defendant, Raymond Sojak, guilty but mentally ill of the October 10, 1990 murders of his wife and two children. Defendant received three concurrent terms of natural life in prison with no possibility of parole. He now argues that he received ineffective assistance of counsel and that he proved his insanity by a preponderance of the evidence. We disagree and affirm.

BACKGROUND

In the early morning hours of October 10, 1990, defendant took a crowbar and bludgeoned his wife and two children to death while they slept. Two notes, handwritten by defendant, were later found at the house. The shorter note read as follows:

"It is now 2 o'clock in the morning on Wed. I have just killed my wife & children. Why? I don't know. I was just thinking of killing myself which I should have done but that is too late now. I never knew it was so hard to kill someone. I never knew it was so hard to kill someone. I thought that 1 or 2 blows from the iron would have done it. If I would have knew [sic] that it was this hard they would still be alive. I [sic] terribly sorry. I thought I would [letter stops.]"

The second note stated the following:

"To whom it may concern

It is now 2 o'clock on Wed. morning and I have just kiled [sic] my wife & children. I would not have done it. I truly regret my actions and I ask God to give them peace in heaven because they had hell on earth with me. I truly tried to be a good father and husband and neighbor I never cheated on my wife in all our years of marriage even though I probably would have if I had a chance but when they presented themselves I did not take the opportunity Why [sic] did I do it. I really don't know except that at the time I thought I could save them the pain & embarrassment of losing their house and father & husband as I hand [sic] every intention of killing myself by jumping on the El tracks for the insurance money so they could have enough to stop the forelosure [sic] on the house. But when the news item got in the paper and it was spread around the neighborhood Pat said she could not live & face them people. I never knew it was so hard to kill someone. I thought 1 or 2 swings with the iron and it would have been over. God knows how sorry I really am. These seem like rambling and they probably are but it is hard to be collected when you are a murderer."

/s/ Ray Sojak [in the margin]

Later that morning, at 7:30 a.m., defendant telephoned the principal of the school attended by the two children. He informed her that the children would be absent due to illness. Defendant also left a telephone message with his supervisor at work, stating that his wife had died and that he would explain the details later. ¹ At 8:00 a.m., defendant received a phone call from Gail Beggs, a family friend. Beggs asked to speak to defendant's wife, Patricia. Defendant informed her that his wife could not come to the phone because she had laryngitis. When Beggs asked if one of the children could bring her some materials from Patricia on the way to school, defendant told her that the children would not be in school because they, too, were ill.

At 9:00 a.m., that same morning, defendant drove to a neighborhood gas station where he purchased two cans of gasoline. The gas station attendant noticed nothing unusual about defendant's conduct or appearance.

Approximately 15 minutes later, a teacher at the school across the street from defendant's house, Lydia Tabernacki, heard an explosion and saw smoke coming from the house. She ran across the street and saw defendant in the front room, moving his arms back and forth. Tabernacki called out to him that the house was on fire. He turned and ran toward the rear of the home.

Firefighters responding to the scene discovered the bodies of Patricia, Kimberly, and Thaddeus Sojak in their bedrooms. They also found defendant under a sleeping bag in the basement of the home. At the time, defendant was semi-conscious and told rescuers that he "was sorry" and to let him die. Defendant was taken to the hospital where doctors treated him for a self-inflicted stomach wound. Police arrested defendant later that day.

The ensuing investigation of the fire revealed that some accelerant had been poured on each of the beds on which the victims were discovered. No traces of accelerant were detected in the basement, although empty gas cans lay scattered where defendant was found. Police recovered the murder weapon, the crowbar, from the kitchen table. Although the crowbar appeared clean, forensic testing later revealed traces of human blood on it.

I

Defendant claims that the failure of his court-appointed attorney to move for a discharge under the Speedy Trial Act (the Act) (725 ILCS 5/103-5 (West 1992)) constitutes ineffective assistance of counsel. The State responds that it brought defendant to trial within the time limits established by the Act; therefore, defendant's attorney did not provide ineffective representation.

Section 103-5(a) of the Act provides in pertinent part that

"[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *." (725 ILCS 5/103-5(a) (West 1992).)

The 120-day period begins to run automatically when a defendant is taken into custody, and defendant need not make a demand for trial. (People v. Garrett (1990), 136 Ill.2d 318, 324, 144 Ill.Dec. 234, 555 N.E.2d 353.) Our courts have construed the Act's provisions liberally and every case is to be decided on its own facts. (People v. Reimolds (1982), 92 Ill.2d 101, 106, 65 Ill.Dec. 17, 440 N.E.2d 872.) To that end, each delay must be reviewed individually and attributed to the party which causes it. Any delay occasioned by the defendant will suspend for the time of the delay the period within which that defendant must be tried. (People v. Smith (1991), 207 Ill.App.3d 1072, 152 Ill.Dec. 920, 566 N.E.2d 797.) Agreed continuances, made on the record, for example, constitute affirmative acts of delay attributable to a defendant and will suspend the speedy trial term. People v. Turner (1989), 128 Ill.2d 540, 553, 132 Ill.Dec. 390, 539 N.E.2d 1196.

Defendant correctly notes that the State is accountable for the 49 day delay between his arrest and his arraignment. After the November 29, 1990 arraignment, the circuit court granted a number of agreed continuances which suspended the term. Defendant's argument, however, hinges on the attribution of two continuances after this period. The first occurred on September 29, 1992.

On that date, the parties appeared in court arguing over the turnover of defendant's medical records to an examining doctor. A dispute had arisen over certain medical reports, compiled by defendant's doctors, which the State's psychiatrists needed in order to complete their evaluation of defendant. In fact, the record contains two letters written to the trial judge by the head of the psychiatric facility selected by the State. Those letters indicate that defendant's examinations could not be completed because the doctors were "waiting to receive requested medical records from the Assistant Public Defender." At the hearing, the trial judge asked one of the State's doctors if, after an in-court tender of documents, he had what he needed to complete his evaluation. The doctor responded that he needed to read the documents. The matter was then continued to October 15, 1992.

Defendant insists that this continuance must be attributed to the State because the transcript does not indicate to which party the continuance was ultimately charged. He correctly notes that a delay will not be attributed to defendant on the basis of a silent record. (People v. Turner, 128 Ill.2d at 553, 132 Ill.Dec. 390, 539 N.E.2d 1196.) However, in this case, the record is not silent because the common law record "half sheet" indicates that the continuance was by agreement. In reviewing speedy trial claims, this court is duty-bound to examine both the transcript of proceedings and the common-law record so as to do complete justice to both the State and defendant. See People v. Allen (1971), 1 Ill.App.3d 197, 199, 272 N.E.2d 296; People v. Jenkins (1968), 101 Ill.App.2d 414, 418-19, 243 N.E.2d 259.

Defendant also points out that mere silence on the part of the defendant does not result in an agreement or waiver of the speedy trial right. (People v. Reimolds, 92 Ill.2d at 106, 65 Ill.Dec. 17, 440 N.E.2d 872.) In Reimolds, the supreme court cited two cases in support of the above holding. In the first case, People v. Cichanski (1980), 81 Ill.App.3d 619, 37 Ill.Dec. 222, 401 N.E.2d 1315, the circuit court set defendant's discovery and suppression motions for a hearing on December 8, 1978 and set the trial date for December 12. After denying defendant's motion to suppress on December 12, the court suggested a March 7, 1979 trial date. The record failed to disclose why the circuit court did not proceed with the trial as scheduled for December 12. The circuit court eventually discharged defendant due to the State's failure to try him within the time periods contained in the Act.

In upholding the circuit court's discharge of defendant, the appellate court noted that although it was "possible" that the State and defense counsel had agreed not to proceed with the trial at that time, "[t]he record * * * is silent as to these matters...