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People v. Davenport

OPINION FILED MAY 31, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DONALD DAVENPORT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Carroll County; the Hon. John DeMoss, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Defendant, Donald R. Davenport, was charged by citation and complaint with the offense of speeding (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-601(b)), in connection with an incident occurring on August 8, 1983. After a jury trial in the circuit court of Carroll County, defendant was found guilty, his post-trial motion was denied, and he was ordered to pay a $150 fine and costs. Defendant has raised five issues on appeal. Because we find no reversible errors, we affirm.

The citation and complaint indicates that defendant was arrested and ticketed for speeding on August 8, 1983, at 7:48 p.m. in the village of Milledgeville, county of Carroll, State of Illinois. Defendant pleaded not guilty and requested a jury trial, which was held on October 31, 1983.

Acting pro se, defendant during the voir dire conducted by the court exhausted his five peremptory challenges, and the court rejected defendant's two challenges for cause. The only witnesses at trial were the arresting officer, James Haag, and defendant. Distilled to its essence, Haag's testimony was that his radar device, tested before and after the incident, indicated that defendant was traveling 53 miles per hour in a 35 miles per hour zone. In contrast, defendant stated he did not exceed the speed limit, braking as necessary in compliance with the posted speed limit signs. Defendant suggested during trial that he believed Haag was enforcing the speed laws selectively against him because Haag did not like him. In support of his theory, defendant presented testimony that Haag had previously ticketed defendant for speeding. Defendant's testimony also suggested Haag was too zealous in his enforcement of the speed laws.

Defendant was sentenced on November 18, 1983. On November 22, 1983, defendant, through counsel, filed a post-trial motion requesting an arrest of judgment and a new trial. The only issues raised in that motion which are also raised on appeal were: (1) defendant was not proved guilty beyond a reasonable doubt, and (2) the trial court erred by (a) denying his motions for continuances and (b) by failing to assist him during voir dire. Defendant also included the general assignment of error that "other errors occurred in the conduct of the trial, the ruling on Motions, and the introduction of evidence, which are general and non-specific but which require a new trial."

Defendant did not raise the issue of the admission into evidence of defendant's belligerent and profane post-arrest statements in his original post-trial motion, but instead only raised this issue in his amendment to post-trial motion filed on February 17, 1984. That same day, the trial court denied defendant's post-trial motions and defendant on March 2, 1984, filed a timely notice of appeal.

• 1 Defendant raises as his first argument that the trial court erred in denying his oral motions for continuances made prior to trial and during the pendency of the trial. The State responds that the trial court did not abuse its discretion in denying defendant's motions.

The right to a continuance is not absolute, and its denial or allowance is a decision to be made within the sound discretion of the trial court. (People v. Davis (1970), 45 Ill.2d 514, 519.) To warrant reversal of the trial court's ruling, the defendant must demonstrate that the denial of the continuance embarrassed the accused in the preparation of his defense so as to prejudice his rights. (People v. McEwen (1982), 104 Ill. App.3d 410, 432 N.E.2d 1043.) The circumstances regarding the continuance motion must be evaluated on a case-by-case basis, including the reasons presented to the trial court at the time the request is denied. (People v. Lott (1977), 66 Ill.2d 290, 297.) The trial court should not refuse to grant a continuance where the ends of justice require that the motion be granted. Waltz v. Schlattman (1980), 81 Ill. App.3d 971, 974, 401 N.E.2d 994, 997.

Although defendant argues he made an oral motion for a continuance prior to the commencement of trial, no evidence of such a motion is contained either in the common law record or in the report of proceedings. Defendant admits to the inadequacy of the record in his appellate brief: "The Motion does not appear on the trial court transcript, having been made prior to the initiation of the trial." Attempting to rectify the inadequate record, defendant's counsel cites his statement made during a hearing on defendant's post-trial motion that "[i]t is my understanding prior to trial the Defendant made a motion to continue to obtain counsel and that motion was denied." This statement cannot be relied upon to establish that the oral motion was actually made, especially where defendant's counsel admitted that his own review of the transcript failed to disclose evidence that the motion was ever made.

During a hearing on defendant's post-trial motion, the trial court stated it did not recall defendant's ever having made the pretrial motion for a continuance.

"As to the Court denying Defendant's motion for continuance to obtain counsel, I do not recall frankly any such thing happening. This defendant has appeared before this court before at a jury trial on a speeding case and not too terribly long before this particular case. He represented himself in that case. I would think that this court would remember if he did make a request for counsel because it would have come as somewhat of a surprise to this court. I do not recall him making any such request."

Since no evidence of a motion for a continuance is found in the appellate record and since the trial court expressly stated it did not recall defendant's ever making such a motion, defendant's contention that the trial court committed error in "denying" the motion is unsupported by the record. Even if defendant did file the motion, he asserted no justification either in the trial court or this court to explain his lack of diligence in obtaining counsel. On these facts, therefore, the ends of justice did not require the trial court to have granted defendant a continuance, and the denial of the continuance motion, if the motion ever actually was made in the trial court, would not have constituted an abuse of discretion.

In contrast to the absence of any record reference concerning defendant's first continuance motion, the record does contain a reference to defendant's request for a continuance to allow him time to issue a subpoena to secure the testimony of the county highway commissioner concerning the exact location of speed limit signs at the scene of the speeding violation. When reviewing the trial court's denial of a motion during trial to obtain a witness, the reviewing court must consider the defendant's diligence, the potential witness' testimony, and the defendant's right to a fair trial. (People v. Williams (1981), 96 Ill. App.3d 958, 422 N.E.2d 199.) The allowance or denial of the continuance motion to compel the presence of a witness is within the trial court's discretion. Ill. Rev. Stat. 1981, ch. 38, par. 114-4.

• 2 Our review of the record convinces us that no abuse of discretion occurred here, because defendant did not act diligently and the potential witness' testimony would not aid defendant in any significant way. As correctly argued by the State, defendant was aware prior to trial both of the location of the offense and that he was charged with exceeding the 35 miles per hour speed limit. Defendant also knew that his argument at trial would be that the officer clocked his vehicle in a 40 miles per hour zone instead of a 35 miles per hour zone. Knowing these facts prior to trial, defendant should have either deposed the county highway commissioner or subpoenaed him before the trial began. This case does not present a situation where a defendant was surprised by the State's evidence. (See, e.g., People v. Lott (1975), 33 Ill. App.3d 779, 338 N.E.2d 434.) Moreover, the witness' testimony would not aid defendant. At trial, defendant stated he sought to subpoena the commissioner "to prove what the speed limit is at the location on this traffic ticket." Even were this witness to have testified that the speed limit was 40 miles per hour, as was asserted by ...


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