APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This is an appeal by the People of the State of Illinois in a criminal case pursuant to Supreme Court Rule 604(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)). The defendant, Fred Gulley, successfully persuaded the Circuit Court of Peoria County to dismiss two indictments charging him with unlawful delivery of heroin. In summary, the trial court dismissed the two indictments against the defendant because of a combination of pre-indictment and post-indictment, pre-arrest delay of 51 months.
The issue presented by the State on appeal is whether the trial court erred in dismissing the two indictments against the defendant. Defendant presents two additional issues in his brief, namely (1) whether he was denied his right to a speedy trial where he was substantially prejudiced by the 42-month delay between the suppressed indictments and his arrest; and (2) whether the assessment of appellate court costs against the defendant, who has not been convicted but is forced to defend against an appeal by the State, is impermissible.
In February of 1974, the Illinois Bureau of Investigation commenced an undercover narcotics operation in the Peoria area. IBI Agent Clem Ferguson and Federal Bureau of Investigation Agent Charles Walters worked as undercover agents during this operation. On February 4, 1974, IBI Agent Ferguson purchased a small quantity of heroin from one Charlie E. Mosely. FBI Agent Walters accompanied the other agent and participated in the sale but remained in the car and was not actually present at the sale itself. The defendant allegedly assisted the two agents in purchasing the heroin from Mosley and was paid $5 for his assistance. Two days later, on February 6, 1974, Agents Ferguson and Walters purchased a small quantity of heroin from another individual, one Melinda Scott, with the defendant allegedly again assisting the agents in their purchase of the contraband narcotics. Both Agents Ferguson and Walters were eyewitnesses to the February 6 transfer. Neither agent had previously known the defendant nor did either see him again thereafter. The memorandums of both agents contained conflicting descriptions of the defendant as well as name variations. In November of 1974, a Peoria County grand jury returned two indictments against the defendant for his part in the February 4 and 6 drug sales. Prior to the convening of the grand jury, FBI Agent Walters died. IBI Agent Ferguson testified before the grand jury and implicated the defendant. At the State's request the two indictments against the defendant were suppressed and arrest warrants were issued for the defendant.
During March of 1974, the defendant left Peoria and moved to Chicago. He remained in Chicago until May of 1978 when he was arrested for a traffic violation and it was discovered that the outstanding Peoria County arrest warrants were unexecuted. Defendant Gulley testified that during his four-year residence in Chicago he was unaware of the Peoria County indictments and arrest warrants. He testified that he had moved to Chicago to look for a job and actually became employed in the construction trade. After being employed for 15 months he became unemployed and collected unemployment insurance from the State of Illinois for about a year. He stated that he had informed both his sister and the woman with whom he had been living that he was going to Chicago when he left Peoria, and had written giving them his address after he arrived in Chicago. He obtained a job at Unicount Chemical Company following his year of unemployment and was employed there until his arrest in May of 1978.
The two investigating agents, Ferguson and Walters, had listed defendant's address as 609 W. Monson in Peoria, while defendant testified that he had resided at 609 Hulburt Street in Peoria. After the arrest warrants were issued the police fed defendant's name into a computer and learned that his driver's license had a Peoria, Illinois, address. In February of 1975 the IBI interviewed the defendant's cousin, Paul Gulley, and informed him of the outstanding arrest warrants for the defendant. However, the cousin was unable to tell the police officers where the defendant had gone. Damion Runyon, the supervisor of the Peoria office of the Illinois Department of Law Enforcement, Division of Investigation, testified that his office had a heavy caseload and that therefore they were not able to interview the defendant's cousin sooner than February 1975.
This particular investigation of drug sales in Peoria identified 24 individuals including the defendant. After the investigation hit its peak, it was terminated resulting in November 19, 1974, indictments. Finally, in May of 1978, 42 months after the return of the indictments, as aforesaid, the defendant was arrested in Chicago for a traffic violation. The Chicago police discovered the outstanding Peoria County arrest warrants in checking defendant through a police computer. Defendant was then arrested pursuant to the arrest warrants and returned to Peoria.
The State asserts that the trial court erred in dismissing the two indictments against the defendant by arguing that the defendant failed to adequately show any actual prejudice from the 42-month delay or alternatively that the delay was reasonable in light of preserving the secrecy of the ongoing investigation. The State also claims the 42-month delay was necessitated by the inability of the State to find the defendant.
1 The case of People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244, sets forth the applicable test to determine if the delay in the present appeal violated defendant's due process.
"Where there has been a delay between an alleged crime and indictment or arrest or accusation, the defendant must come forward with a clear showing of actual and substantial prejudice. Mere assertion of inability to recall is insufficient. If the accused satisfies the trial court that he or she has been substantially prejudiced by the delay, then the burden shifts to the State to show the reasonableness, if not the necessity, of the delay.
If this two-step process ascertains both substantial prejudice and reasonableness of a delay, then the court must make a determination based upon a balancing of the interests of the defendant and the public. Factors the court should consider, among others, are the length of the delay and the seriousness of the crime." People v. Lawson (1977), 67 Ill.2d 449, 459, 367 N.E.2d 1244, 1248. *fn1
The task of judging when a delay has caused actual prejudice, or whether the delay was reasonable, or which of the competing interests outweighs the other in attempting to balance one against the other, is a difficult duty. In reviewing the action of the trial court we must carefully examine the application of each element of the Lawson test as the trial court did to determine whether the trial court erred in dismissing the indictments against the defendant because of the 51-month pre-indictment pre-arrest delay.
To satisfy the initial element of the Lawson test the defendant must come forward with a clear showing of actual and substantial prejudice resulting from the complained of delay by the State. The length of the delay here, 51 months, causes great suspicion and a presumption that the delay was prejudicial. (People v. Nichols (1978), 60 Ill. App.3d 919, 377 N.E.2d 815, appeal denied (1978), 71 Ill.2d 612 (prejudice was presumed).) We agree with the trial court that the defendant satisfied the first element of the Lawson test.
2 Several important facts will illustrate the actual prejudice to the defendant from such a long delay as in the present case. The two deliveries of heroin were on two separate days. On one day the now-deceased FBI agent was an actual eyewitness to the entire transaction. The reports of both the FBI agent and the IBI agent show some serious discrepancies in the identification of the man alleged to be the defendant, as well as distinct differences in actually naming the defendant. Neither the IBI agent or the FBI agent knew the defendant previously, nor did either of the two see him thereafter. The indictments were suppressed, and it appears the defendant did not know about them. To perfect an alibi the defendant and his witnesses would be required to recall an uneventful two days back four years to negate the evidence presented by the State. Presuming the defendant's innocence, it would take some unusual activity on the two relevant days to call attention to them to cause them to be recalled by the defendant or any of his alibi witnesses. The death of the FBI Agent Walters further prejudiced the defendant in that Walters' inconsistent description and identification of the defendant cannot now be questioned or attacked. FBI ...