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People v. Davis





Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.


In a jury trial, defendant, Wayne Davis, was found guilty of rape, deviate sexual assault, armed robbery and unlawful restraint. The trial court held that the deviate sexual assault conviction merged into the rape conviction and sentenced defendant to serve 30 years in the Illinois Department of Corrections for rape and 20 years for armed robbery, the sentences to run concurrently *fn1 On appeal, defendant contends that he was deprived of his statutory right to a speedy trial and his constitutional right to counsel of his own choice. For the reasons which follow, we reverse defendant's convictions and remand the cause for a new trial.


• 1 Defendant first contends that he was denied his statutory right to a speedy trial. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5.) The speedy trial statute provides that every person in custody for an alleged offense shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a).) Any delay occasioned by the defendant temporarily tolls, for the time of the delay, the 120-day period within which defendant must be tried. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(f); People v. Williams (1981), 94 Ill. App.3d 241, 247, 418 N.E.2d 840.) No other delay, whether caused by the State or by the court, will toll the running of the statutory period. People v. Neideffer (1975), 25 Ill. App.3d 819, 822, 324 N.E.2d 46.

The record discloses that defendant was arrested on June 23, 1980, for offenses which were alleged to have taken place on June 12, 1980. Defendant was indicted on July 2, 1980 (indictment No. 80-4507) and, on July 15, 1980, his case was assigned to Judge Thomas J. Maloney for trial. Six days later, on July 21, 1980, defendant filed a motion for substitution of judges (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a)), which Judge Maloney denied on August 12, 1980.

Defendant's speedy-trial argument focuses on the 237-day period from August 12, 1980, the date on which Judge Maloney denied defendant's motion for substitution, to April 6, 1981, when, pursuant to a supervisory order issued by the Illinois Supreme Court on March 26, 1981, Judge Maloney transferred defendant's case to Judge Arthur J. Cieslik. *fn2 Defendant contends that Judge Maloney erred in denying his motion for substitution and that, as a result, all of Judge Maloney's subsequent actions in the case, including the continuances he granted, were void. Defendant submits that if the continuances were unauthorized, then none of the delays during this 237-day period properly may be attributed to him. We cannot agree.

Where a motion for substitution of judges is filed within 10 days after the case has been placed on the judge's trial call, the right to substitution is absolute. (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a); People v. Peter (1973), 55 Ill.2d 443, 458, 303 N.E.2d 398.) Upon the filing of a motion which is in compliance with the statute, the trial judge loses all power and authority over the case except to make the necessary orders to effectuate the substitution, and denial of the motion constitutes reversible error. (People v. McGlothen (1962), 26 Ill.2d 392, 394, 186 N.E.2d 319; People v. Kostos (1961), 21 Ill.2d 451, 455, 173 N.E.2d 469.) If a substitution motion is erroneously denied, all proceedings subsequent to the order of denial are void. (People v. Thomas (1978), 58 Ill. App.3d 460, 463, 374 N.E.2d 795; People v. Ethridge (1966), 78 Ill. App.2d 299, 304, 223 N.E.2d 437.) In our judgment, it is unnecessary to decide whether Judge Maloney improperly denied defendant's motion for substitution on August 12, 1980, because it is clear from our examination of the record that defendant was not ready for trial before any judge between August 12, 1980, and April 6, 1981.

In determining whether the 120-day period has been tolled, the proper test is whether an act of defendant in fact caused or contributed to the delay. (People v. Shields (1974), 58 Ill.2d 202, 204, 317 N.E.2d 529.) Furthermore, "[a] reviewing court must carefully examine the surrounding facts and circumstances to prevent a mockery of justice either by technical evasion of the right to a speedy trial by the State, or by discharge of a defendant by a delay in fact caused by him." People v. Bevis (1980), 89 Ill. App.3d 344, 346, 411 N.E.2d 1123.

In the instant case, Judge Maloney charged defendant with virtually all of the continuances which he granted between August 12, 1980, and April 6, 1981, because defense counsel repeatedly stated that they were not ready for trial. Although counsel did object to charging defendant with several of these continuances on the ground that defendant was not properly in Judge Maloney's courtroom, they never informed Judge Maloney that defendant was prepared immediately to proceed to trial before another judge. Nothing in this record supports defendant's argument that the delay in bringing him to trial was caused by the denial of his motion for substitution of judges. Rather, the delay occurred because defendant was not ready for trial. Thus, since defendant's own lack of preparedness prevented his being tried at an earlier date, we conclude that his right to a speedy trial was not violated.


• 2 Defendant next contends that he was denied his constitutional right to counsel of his own choice when Judge Cieslik removed Judith Halprin as his counsel and appointed the public defender in her place. The following facts are pertinent to our analysis of this issue.

Shortly after July 15, 1980, defendant's family retained Rick Halprin and Judith Halprin to represent him. On April 7, 1981, Judith Halprin moved to withdraw as counsel because she had not received her fee. *fn3 Judge Cieslik denied this motion but appointed Halprin to represent defendant because she had been serving as his counsel for the previous nine months.

Prior to trial, Halprin persisted in rearguing motions on which Judge Cieslik had already ruled. When Judge Cieslik threatened to hold her in contempt if she continued with this conduct, Halprin accused him of "intimidating" her. Before the parties began selecting a jury on July 15, 1981, Judge Cieslik denied Halprin's motion for leave to question prospective jurors during voir dire. During jury selection, Halprin repeatedly renewed her motion, stating that the judge's questioning of the prospective jurors did not permit her to evaluate properly their qualifications to serve as jurors.

Judge Cieslik admonished Halprin to make no references which would "pollute this jury" and ordered her to raise only in sidebar discussions matters which did not concern the jury. Halprin then moved to withdraw as counsel because of "intimidation." The court denied this motion. When Halprin continued to complain of her inability under the circumstances to select jurors, Judge Cieslik warned her that if she made one more similar comment in front of the jury he would declare a mistrial and hold her in contempt. After the next two jurors were tendered to her, Halprin said, "Then with our apologies to the jury based on our necessarily limited information, [defendant] will excuse Mr. Keane and Mr. Weinstein." Judge Cieslik excused the two jurors, immediately called a conference in his chambers and cited Halprin for contempt because she had ignored his repeated warnings. Thereupon the case was continued to the following day, July 16, 1981, at which time Judge Cieslik stated that he was granting Halprin's earlier motion to withdraw and ...

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