Appeal from the Circuit Court of Hamilton County. No. 93-CF-26. Honorable David L. Underwood, Judge, presiding.
As Corrected November 30, 1995.
The Honorable Justice Kuehn *fn1 delivered the opinion of the court: Hopkins and Goldenhersh, JJ., concur.
The opinion of the court was delivered by: Kuehn
JUSTICE KUEHN *fn1 delivered the opinion of the court:
Defendant, Duke Hubbard, appeals his conviction on two counts of burglary and two counts of theft. The defendant claims that he was denied his statutory right to a speedy trial. He further claims that he was denied a fair trial based upon the use of hearsay evidence to establish his guilt.
Defendant was arrested on June 10, 1993. At the time of his arrest in Hamilton County, defendant enjoyed bail on pending charges in Jackson County. In August of 1993, the defendant pled guilty but mentally ill to the Jackson County charges and was sentenced by that court to two consecutive six-year terms of imprisonment. On September 16, 1993, the defendant appeared in Hamilton County to enter pleas of guilty but mentally ill to all pending Hamilton County charges. The trial judge determined that the change of pleas was voluntary, but the judge declined to accept the pleas, pending his review of a psychiatric report prepared for Jackson County. In anticipation that the report would justify the defendant's pleas, the trial judge set October 21, 1993, as the sentencing date.
On October 18, 1993, defendant filed numerous pro se motions. He moved to dismiss his pending charges, asserting that the court's failure to accept his pleas of guilty but mentally ill allowed the 120-day statutory speedy trial limitation to run. He also moved to dismiss his pending charges based upon the ineffectiveness of trial counsel, the use of improper investigative techniques, and the State's failure to provide him with proper medical treatment. On October 21, 1993, the trial court vacated the plea proceedings, obliged defendant's request for the appointment of new counsel, and scheduled November 18, 1993, for the purpose of addressing pretrial matters.
On November 18, 1993, the court denied defendant's motion to dismiss for violation of his statutory right to speedy trial. The court ruled that defendant's guilty pleas on September 16, 1993, coupled with motions defendant had filed, constituted delay chargeable against the defendant and tolled the running of the statute from September 16, 1993, through November 18, 1993.
The defendant's trial commenced on December 6, 1993, and the jury convicted the defendant on all counts.
The following are the relevant facts from defendant's trial. Victims John and Gerry Engel stored flea market merchandise at the home of Mrs. Engel's deceased mother. Mrs. Engel boxed the items and affixed price tags to them so that she could eventually transport them to the flea market for sale. In June 1993, Mrs. Engel noticed that some items were missing. Her husband noticed that someone apparently entered the home through a window. The Engels notified the police of the theft. Within a few hours of reporting the theft, the Engels discussed their loss with friends, who were also flea market aficionados. The Engels learned that friends and acquaintances purchased some of their missing merchandise at a yard sale at the home of Ida Fay and Shirley Boner. Duke Hubbard lived with Ida Fay and Shirley Boner.
On June 7, 1993, the police obtained permission to search Ida Fay Boner's home. The Engels accompanied them and identified property found on the porch of the Boner household as property which they had stored in Mrs. Engel's mother's home. At that point, the police asked Ida Fay Boner to accompany them to the McLeansboro police station, where she was advised of her constitutional rights and was interrogated. After four hours of interrogation, Deputy Sheriff John Moore reduced her statements to written form. Ms. Boner signed a written statement and went home.
In her June 7, 1993, statement, Ida Fay Boner told police that the defendant told her he broke into the Engel home. She further advised that he admitted the burglary of another home, and this statement led to further investigation and the charges contained in counts three and four. At the trial, however, Ida Fay testified that the defendant told her the items came from auction purchases and out of dumpsters. She denied what she told the police, and claimed that she was threatened and coerced into signing the statement. Over defense objections, the State then used the June 7, 1993, prior inconsistent statement as substantive evidence to convict the defendant.
On January 20, 1994, the court sentenced the defendant to an extended term of 14 years in prison on the two burglary charges and 10 years in prison on the two theft charges, to be served concurrently. Because the defendant was on bail when the offenses were committed, the sentences were imposed to run consecutively to the second of two consecutive six-year prison terms imposed by Jackson County.
Defendant contends that the trial court erred in denying his motion to dismiss for violation of his ...