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People v. Makes





APPEAL from the Circuit Court of Du Page County; the Hon. CARL HENNINGER, Judge, presiding.


Following a jury trial, defendant, Lynda E. Makes, was found guilty of felony theft (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)), and sentenced to two years' imprisonment. Defendant now appeals and alleges that (1) the 30-month delay between her arrest and the State's filing of an information deprived her of her constitutional right to a speedy trial; (2) the trial court erred in denying her motion to suppress her confession and failed to require production of all material witnesses thereto; and (3) the two-year prison sentence imposed was an abuse of discretion.

As this appeal involves only pretrial and sentencing issues, we summarize just those facts relevant for an understanding of the case. On February 10, 1977, defendant was confronted by Officers Velon and Kant of the Glen Ellyn police department at her place of employment, the Du Page Travel Bureau, Inc., on suspicion of theft. After she allegedly admitted her involvement in the theft of money from that travel agency, defendant was arrested, administered Miranda warnings, and taken to the Glen Ellyn police station. At the police station, defendant was questioned further by Officers Kant and Velon. At trial, Officer Velon testified that when questioned, defendant admitted "issuing airline tickets and receiving money for the airline tickets that she had issued, but had not returned the money to Du Page Travel and in fact she had kept the money * * *." Later on the day of defendant's arrest, Peggy Malcolm, defendant's employer at the Du Page Travel Bureau, signed a complaint for theft against defendant. Defendant was released on bond on February 11, 1977. At a hearing on March 15, 1977, probable cause was found and bond was continued. The record also makes reference to an investigation by the Du Page County grand jury conducted in August and September of 1977, although the details of such investigation are not of record and the defendant was not indicted.

On August 14, 1979, defendant and a co-defendant, who was later severed from this case prior to trial, were charged by information with theft of approximately $15,000 from the Du Page Travel Bureau. Defendant was arraigned on September 17, 1979. Several continuances, agreed to by both parties, followed. On January 28, 1980, defendant filed a motion to dismiss the information on speedy trial grounds which was denied by the trial court after hearings consisting of arguments by counsel on January 30, and February 1, 1980. Also, although the court, without a hearing, originally denied defendant's motion to suppress her confessions filed on February 4, 1980, as it was untimely, the court later held a hearing on the "voluntariness" of the confessions on February 7, 1980, just prior to trial. The court ruled the statements admissible. Defendant was subsequently found guilty and, following a sentencing hearing, was sentenced to two years in the Department of Corrections.

At trial, the State's first witness, Peggy Malcolm, testified that she had hired the defendant in August of 1976. Malcolm had performed an audit of the travel bureau's books and discovered that defendant had issued airline tickets for which the bureau had not received payment. She reported her discovery to the Glen Ellyn police on February 10, 1977, and later that day she signed a complaint against defendant for theft. She also testified that on February 17, 1977, defendant telephoned her and offered to make restitution.

Officer Robert Velon of the Glen Ellyn police department was the only other witness called by the prosecution. Velon was contacted by Peggy Malcolm on February 10, 1977, and subsequently he and Lieutenant Kant went to the Du Page Travel Bureau in order to speak with the defendant. Defendant admitted her involvement in the theft, was placed under arrest, and was taken to the Glen Ellyn police station where Officers Kant and Velon conducted an interview. Defendant then proceeded to describe the nature of her involvement in the offense. Essentially she admitted she would issue an airline ticket to an individual, receive money for it, and keep the money.

The witnesses for the defense were Harold Rubin, Leslie Lev, and the defendant in her own behalf. Rubin testified that although he did not know the defendant, he had on one occasion purchased two airline tickets from Lev at 6% less than the face value of the tickets. On direct examination of Leslie Lev, Lev invoked his privilege against self-incrimination in response to nearly every question. The trial court later granted the State's motion to strike the testimony as it was not probative.

Defendant testified that she had met Lev in a lounge in Naperville and he later contacted her and requested that she procure airline tickets for him at a discount. Defendant initially refused but later complied after numerous calls and threats of bodily harm from Lev. Defendant indicated that on several occasions Lev or a companion had struck her. She testified that Lev would pay only a portion of the face value of the ticket and occasionally would not pay anything. Her defense was that she acted under compulsion.

The State recalled Officer Velon as a rebuttal witness. Velon stated that, during his conversation with defendant at the Glen Ellyn police station, she admitted that she had been fired from the Hinsdale Travel Agency "for doing the same thing she had done at the Du Page Travel."

Defendant first contends that the 30-month delay between her arrest and the filing of the information deprived her of her constitutional right to a speedy trial. In criminal prosecutions, the accused has a constitutional right to a speedy trial. (U.S. Const., amend. VI.) This Federal constitutional right has been made applicable to the States through the due process clause of the fourteenth amendment. (Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L.Ed.2d 1, 87 S.Ct. 988.) We must also note that we are not herein concerned with the Illinois statutory right to a speedy trial since the defendant was not in custody (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a)), nor did she demand trial (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(b)).

• 1, 2 The right to a speedy trial attaches when a criminal prosecution has begun, such as by arrest, on the charge for which the accused is subsequently prosecuted. (Dillingham v. United States (1975), 423 U.S. 64, 46 L.Ed.2d 205, 96 S.Ct. 303; United States v. Marion (1971), 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455.) In the present case, the defendant complains of a post-arrest, pre-information delay. In Barker v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182, the Supreme Court articulated a four-point balancing test to be applied to determine if the right to a speedy trial has been violated. The court must balance the length of the delay, the reason for the delay, the defendant's assertion of the right, and prejudice resulting to the defendant from the delay. (407 U.S. 514, 530, 33 L.Ed.2d 101, 117, 92 S.Ct. 2182, 2192.) The length of the delay is the triggering mechanism; until there is some delay which is presumptively prejudicial, there is no need to inquire into the other factors. (407 U.S. 514, 530, 33 L.Ed.2d 101, 117, 92 S.Ct. 2182, 2192.) We regard the 30-month delay in the present case sufficiently lengthy to warrant inquiry into the other factors that go into the balancing test. See People v. Harflinger (1977), 49 Ill. App.3d 31, 34, 363 N.E.2d 875.

• 3 The State suggests as a reason for the delay in the present case that there was a grand jury investigation to determine if others might be brought to trial for the same offense and that the State wanted to wait until such time that it felt it could prove its case beyond a reasonable doubt. Our careful examination of the record indicates that subsequent to the defendant's arrest on February 10, 1977, the grand jury did conduct hearings into this matter in August and September 1977. However, the record is simply devoid of any indication of what caused the subsequent delay to August 14, 1979, when the information was filed. Nor is it shown in the record what evidence the State was collecting during this period which necessitated the delay, as the State suggests in its brief. We therefore reject the State's contentions as having no basis in the record. The State also argues that it had been conducting ongoing plea negotiations with the defendant. While it does appear that plea negotiations were undertaken, this occurred after the 30-month delay and took place between the time of arraignment on September 17, 1979, and the time trial began. Nevertheless, we do not ascribe to the State a deliberate attempt to delay the trial in order to hamper the defense, but rather, it appears to result from the more neutral reason of negligence. Although such negligence is not to be condoned, it is weighed less heavily against the State compared to an intentional delay. (Barker v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182; People v. Woods (1979), 78 Ill. App.3d 431, 437-38, 396 N.E.2d 1204.) While such unexplained lengthy delays are usually counterproductive to our judicial process and have been condemned by reviewing courts> (see People v. Joseph (1975), 33 Ill. App.3d 315, 320, 337 N.E.2d 110; People v. Gray (1972), 7 Ill. App.3d 526, 532, 288 N.E.2d 26), we must consider that delay as it relates to the other two factors in the balancing test.

• 4 The next factor to be given consideration is the defendant's assertion of his speedy trial right. Defendant made no mention of this right until five months after the information had been filed. The Supreme Court in Barker emphasized the fact that a defendant's failure to assert the right will make it difficult to prove that he was denied a speedy trial. (407 U.S. 514, 532, 33 L.Ed.2d 101, 117-18, 92 S.Ct. 2182, 2193.) We do not view defendant's failure to demand a speedy trial as totally dispositive of the issue here since no information had yet been filed against her, and thus, she could not have been certain that prosecution for the offense was imminent. However, defendant had been arrested and a complaint for theft had been signed by her employer, Peggy Malcolm, on February 10, 1977. On February 15, 1977, a preliminary hearing was held and probable cause was found. Defendant did not choose to demand a speedy trial at that time nor at any time thereafter until January 28, 1980. Although the information had not yet been filed, defendant could have demanded a speedy trial as soon as she was placed on bail. (People v. Sharos (1974), 24 Ill. App.3d 265, 268, 320 N.E.2d 351.) Moreover, the same counsel represented the defendant during this entire period of time, and no request for a speedy trial was made. This can be indicative that the defendant did not want a speedy trial. (See Barker v. Wingo (1972), 407 U.S. 514, 534-36, 33 L.Ed.2d 101, 119-20, 92 S.Ct. 2182, 2194-95.) No question is raised as to the competency of trial counsel. Under these circumstances, although we do not view her failure to demand trial as fatal to her claim, it is a factor to be weighed against her. (People v. McCord (1978), 63 Ill. App.3d 542, 545-46, 379 N.E.2d 1325; People v. Harflinger (1977), 49 Ill. App.3d 31, 35-36, 363 N.E.2d 875; People v. Joseph (1975), 33 Ill. App.3d 315, 320, 337 N.E.2d 110.) Our conclusion that defendant acquiesced in the delay is reinforced by defendant's express disavowal of the right when later questioned by the presiding judge at her arraignment on September 17, 1979. When asked if she was invoking her speedy trial right then, counsel for defendant responded, "not at this time."

We next consider whether defendant was prejudiced by the delay. When arguing her motion to dismiss, defendant alleged prejudice in that she was unable to locate a material defense witness, Leslie Lev. This does not concern us on appeal, however, since Lev was ultimately present at defendant's trial. Defendant now alleges that she was prejudiced in that, during the delay, Lieutenant Kant of the Glen Ellyn police department, a material witness to defendant's confession, left the State. During the hearings on defendant's motion to dismiss the information, defendant never raised Kant's absence as a basis for prejudice. Assuming, arguendo, that this has been properly preserved, there is no showing that Kant's absence was prejudicial to the defendant. Although we will more fully discuss this later in our opinion as it relates to defendant's second assertion of error, there is no indication that Kant's testimony would be favorable to the defendant in her defense. Also, we question whether ...

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