SUPREME COURT OF ILLINOIS
539 N.E.2d 1196, 128 Ill. 2d 540, 132 Ill. Dec. 390 1989.IL.554
Appeal from the Circuit Court of Macoupin County, the Hon. John W. Russell, Judge, presiding.
JUSTICE RYAN delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case. JUSTICE MILLER, Concurring in part and Dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN
Defendant, Robert Turner, and two other men were charged in an information in the circuit court of Macoupin County with one count each of murder, aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, kidnapping, unlawful restraint, and robbery. The trial court granted a motion to sever the three defendants' trials. Following a jury trial, Turner was found guilty of the charged offenses. In a death penalty hearing the jury found that there existed one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) and there existed no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (107 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). The court also sentenced the defendant to 30 years' imprisonment for aggravated criminal sexual assault, 15 years' for criminal sexual assault, 15 years' for aggravated kidnapping, 7 years' for kidnapping, 3 years' for unlawful restraint and 7 years' for robbery.
On July 13, 1985, the defendant, his brother Michael Turner, and Daniel Hines went fishing. While fishing or later that evening, they discussed "getting some girls." Their plan was to pretend they were policemen and follow a car with a woman in it. They would then pull the car over by the use of a red flashing light, similar to one a police car has.
After fishing, they waited for and followed a number of cars, looking for the right person. When they spotted the car driven by 17-year-old Bridget Drobney, they turned the light on and she pulled over to the side of the road. Hines exited his vehicle, approached Drobney's car and asked for her driver's license. Under the ruse that they had to take her to the station, Drobney was told to get into their car. The men then drove to a nearby cornfield. They parked the car on the side of the road, and Hines and the defendant took the girl six or seven rows into the cornfield. While Michael Turner waited by the road, Robert Turner and Hines beat Drobney and made her perform various sexual acts. A number of Drobney's possessions were taken and put into the car. Eventually, Hines and Michael turned the car around and called a number of times for the defendant to leave. The two heard noises, either a gurgling or a gasp for air, and then the defendant walked out of the cornfield holding a 10-inch-long knife. Later, the defendant told Hines and Michael that he had murdered Drobney. Drobney's body was found on July 17, 1985. She had suffered a stab wound to the neck and her throat had been slit. The defendant's sister, Sandra Aldridge, reported the incident to the police after Michael told her what had happened.
The defendant does not contest the sufficiency of the evidence. He first contends that he should be released because he was not tried within the 120-day time period which the speedy-trial statute demands. (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(a).) The section prescribes that:
"Every person in custody in this State for an alleged offense shall be tried by the court . . . within 120 days from the date he was taken into custody unless delay is occasioned by the defendant." Ill. Rev. Stat. 1985, ch. 38, par. 103-5(a).
The defendant was arrested on July 18, 1985, and an arraignment date was set for August 13. Defendant's July 31 motion to postpone the arraignment until August 21 was granted. At the arraignment, the court set a September 23 trial date. On September 18, the defendant requested a continuance in the trial date, which the court granted. Over the defendant's objection, the three cases were severed on September 26. The defendant agrees that he requested a number of continuances in the subsequent months. Eventually, the trial was set for March 17.
All parties understood that Hines' trial would be first, the defendant's trial next, and last would be Michael Turner's. On March 17, Hines' trial commenced with voir dire. On April 8, before completion of the Hines trial, a hearing was held to set a trial date for the defendant. The trial was set for June 2, 1986.
The parties first disagree on computation of the time from the arrest on July 18, 1985, until the March 17, 1986, trial date. The State urges that 42 days may be computed in calculating the speedy-trial time, and the defense argues that 59 days had passed. The State then argues that the 77 days from March 17 until the trial on June 2 are chargeable to the defendant because he expressly agreed to the trial date and he contributed to the delay. The defendant argues that his trial had been set for March 17, and at no time subsequent to that date did he request a continuance. Therefore, the defendant argues that he was tried 136 days after being taken into custody.
Section 103 -- 5 is to be construed liberally to give effect to the constitutional right to a speedy trial, with each case decided on its own facts. (People v. Beyah (1977), 67 Ill. 2d 423, 427.) Under this section, it is the State's burden to bring the defendant to trial within the statutory time limit. (67 Ill. 2d at 427.) The 120-day time limit may be suspended temporarily for a number of reasons, such as delay occasioned by the defendant. In determining whether delay is occasioned by the defendant, the criterion is whether his acts in fact caused or contributed to the delay. (People v. Nunnery (1973), 54 Ill. 2d 372, 376.) On a motion to discharge, the defendant bears the burden of establishing facts which show a violation of the statute. (People v. Jones (1965), 33 Ill. 2d 357, 361.) "In resolving whether a delay is attributable to the defendant, much deference must be given to the trial court's judgment, especially where it is difficult to discern from the record which party is primarily responsible for the problem. [Citations.] The decision of the trial court as to accountability for delay in bringing the defendant to trial should be sustained, absent a clear showing of abuse of discretion." People v. Reimolds (1982), 92 Ill. 2d 101, 107.
This issue may be resolved by analyzing the 77-day delay from May 17, the trial date the defendant first agreed to, until June 2, the date on which the trial eventually commenced. The first relevant date is January 10, 1986, when the three defendants appeared in court to request a continuance in the trial. At the hearing, counsel for Hines indicated that one basis for the continuance was so that a hair expert could be appointed to analyze pubic hairs which were found on the victim. The State's expert had indicated that some of the hairs could be identified as similar to each of the defendants' hairs. Robert Turner's counsel commented that the evidence was very damaging and that he would like an expert to examine the hair samples. He also stated that he was not in a hurry to go to trial; that March was bad and he would rather start sometime in mid-April. The cases were continued until February 3.
At a February 13 pretrial hearing, the defendant requested the appointment of additional counsel to assist in trial preparation, and for a continuance in the trial until March 17. The court granted both requests and indicated hope that the new attorney would not delay the trial further. The parties could not agree on an attorney and the court granted one week in order to find additional counsel. On February 20, the court made a docket entry which stated that an attorney had accepted the appointment. The attorney filed an appearance on April 3.
On February 21, Hines filed a motion for appointment of a hair expert. Defendant filed a similar motion on February 25. In the motion he stated that "in order to properly and adequately present a defense in the above matter, it is necessary for the defendant" to have the hair sample independently examined by an expert. The defendant also stated that the examination would not delay the trial.
The Hines trial commenced on March 17. While the Hines trial was in progress, the court set a hearing for the Turner case on April 8. The following transpired:
"THE COURT: . . . he trial of Daniel Hines commenced on March 17, 1986, and still continues at this time. Any particular preference as to time, Mr. Hebron?
MR. HEBRON: No, your honor.
THE COURT: This case will go -- Mr. Hines's will go two to three weeks. I don't know if you will be ready in May. Court has another case set in May. June would be an available date, first Monday in June. Any problem with that?
MR. HEBRON: No. As I said, we could do it in May or June.
THE COURT: June 2nd all right with you?
MR. HEBRON: All right with me whenever it is.
THE COURT: June 2 all right with you?
THE COURT: Show the Defendant personally concurs in setting date of June 2nd. Will show then that this cause is set for jury trial on Monday, June 2, 1986, at 9:00 a.m. And it's set for pre-trial conference for Thursday, May 29, 1986, at 9:00 a.m."
On April 17, the parties appeared in court for a hearing on the defendant's motion for appointment of an expert to conduct hair examinations. The defendant's attorney explained to the court that the expert had not yet conducted an examination of the hairs and he would like the court to authorize him to do that. The court granted the motion.
At a pretrial conference on May 29, the defendant filed a motion for discharge due to violation of the speedy-trial act. At the hearing, he indicated that during the previous week he received an oral report on the results of the expert's examination and that the results were not helpful to his case; therefore, he was not going to present testimony in rebuttal to the State's expert's analysis. The trial court denied the motion to discharge. The court conceded that it was unable to hear the case earlier, but found that the defendant had expressly agreed to the setting of the June 2 trial date and had never indicated that he was ready or wanted an earlier trial date. The trial Judge assigned defendant's case to another Judge because he did not think he should hear the case after having presided over the Hines trial.
We believe that the record establishes that the defendant contributed to the delay. The defendant knew that his trial would not commence until Hines' case was resolved and his actions indicate that he was not ready on March 17. At a hearing in January, he indicated that March was a bad time for him and he would prefer April or May. In February he requested appointment of additional counsel and filed a motion for appointment of an expert to examine evidence which was damaging and crucial to his case. In April he set a hearing for his motion to appoint an expert, and in May he acknowledged that there had been a mix-up and that the expert did not prepare a report of his findings until the end of May. The trial Judge was justifiably under the impression that the parties were not ready for trial and in April he was merely suggesting a date which was agreeable to the parties and to the court's docket.
The defendant also expressly agreed to the setting of the trial date. Delay will not be attributed to the defendant on the basis of a silent record or if defendant fails to object to the State's request for a continuance. (People v. Reimolds (1982), 92 Ill. 2d 101, 106.) However, an express agreement to a continuance on the record is an affirmative act attributable to the defendant. (Reimolds, 92 Ill. 2d at 106; People v. Gooding (1975), 61 Ill. 2d 298, 301; People v. Fosdick (1967), 36 Ill. 2d 524, 530; People v. Niemoth (1951), 409 Ill. 111, 116.) The defendant and his attorney expressly agreed to the date chosen, with counsel repeating that he could try the case in May or June. The defendant argues that there is a distinction between mere agreement to a date ordered by the court and an agreement by the defendant to a delay of the trial, citing People v. Beyah (1977), 67 Ill. 2d 423, and People v. Wyatt (1962), 24 Ill. 2d 151. Though there is a distinction, we do not find those two cases helpful for the defendant.
In Beyah, the court and attorneys were occupied in the trial of a different matter. The defendant appeared on a bond reduction motion. After denying the motion, the court required the defense to pick a trial date. When the court recommended a day, the defense counsel asked for an earlier date but the court denied the request. This court reasoned that it would be a mockery of Justice to conclude that after counsel was ordered to pick a date the delay was attributable to him.
In this case, the court and the prosecutor were involved in other matters, but the trial date was not thrust upon the defendant. The defendant's actions indicated that more time was needed. When the court recommended a date, the defendant agreed that it was acceptable. This is unlike Beyah, where the defendant was forced to accept a date the court chose.
In Wyatt, the two defendants appeared at an arraignment. The trial court inquired whether they had attorneys, and the defendants responded that they had not obtained counsel yet but planned to hire one before the trial. The court said that if they thought they could get attorneys, he would continue the arraignment. The defendants agreed to hire attorneys and the arraignment was continued for two weeks. This court ruled that the two-week continuance could not be attributed to the defendants because "it was the court, and the court alone, which proposed and interjected the matter of a continuance." (24 Ill. 2d at 154.) The defendants merely stated that they would hire attorneys before the trial, not that they needed additional time to hire attorneys. In our case the continuance was not a matter of convenience solely interjected by the Judge, but rather one partly necessitated by the needs of the defendant.
Defendant has not met his burden of showing that the trial court abused its discretion. We realize that the State and Judge were on trial with the Hines case, but we cannot accept that no part of this time can be attributed to the defendant. It is reasonable to assume from the record that the trial court did not believe the defendant was ready for trial and that the court believed it was accommodating the defendant in the setting of the trial, to which the defendant expressly agreed. Therefore, the motion to dismiss on this basis was properly denied.
The defendant next requests a new trial. First, he contends it was highly prejudicial and improper for the prosecutor to ask the defendant whether other witnesses were lying because their testimony was different from the defendant's. The State argues that the defendant waived this issue because, of the numerous instances of such cross-examination cited on appeal, only three were objected to at trial and the issue was not one of the 66 raised in defendant's three post-trial motions. We have recently affirmed the principle that, even in a capital case, to preserve an issue for appeal, an objection must be made at trial and raised in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186; People v. Crews (1988), 122 Ill. 2d 266, 274-75.) The failure to properly preserve an objection will limit our review to certain constitutional issues, questions on sufficiency of the evidence and issues involving plain error. (Enoch, 122 Ill. 2d at 190.) Therefore, unless plain error is involved, this issue is waived. The plain error doctrine will be invoked when the evidence is closely balanced, or if the error is of such a magnitude that the accused is denied a fair and impartial trial. People v. Britz (1988), 123 Ill. 2d 446, 472; People v. Gacy (1984), 103 Ill. 2d 1, 28.
The defendant testified that he spent the evening at the lake fishing and had nothing to do with the murder. This was contradicted by the evidence presented at trial, which included testimony of Michael Turner, an acquaintance and the defendant's sister-in-law, who stated they saw the defendant in Hines' car the night of the murder, and two of the defendant's cellmates who heard the defendant explain what had happened on the night of the crime. At trial, the prosecutor attempted to have the defendant explain the discrepancies between ...