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People v. Kliner

December 03, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. RONALD KLINER, APPELLANT.


The opinion of the court was delivered by: Justice Bilandic

Agenda 27-May 1998.

Defendant, Ronald Kliner, was charged in Cook County with two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(1), (a)(2)) and one count of conspiracy to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8-2). These charges related to the February 18, 1988, murder of Dana Rinaldi in Palatine, Illinois. The jury returned verdicts of guilty against defendant on all counts and the trial court entered judgment on the murder verdict. Defendant waived a jury for the death sentencing hearing. The trial court found defendant eligible for the death penalty on the basis that he committed the murder pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(5)). After considering evidence in aggravation and mitigation, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death for the murder of Dana Rinaldi. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm defendant's conviction and death sentence.

FACTS

The evidence adduced at trial showed that at around 12:30 a.m. on February 18, 1988, two neighbors, John and Deborah Fostin, discovered the body of Dana Rinaldi in her car located in the parking lot of the Wyndham Court apartment complex in Palatine, Illinois. Dana had lived in that apartment complex with her husband, Joseph Rinaldi. Dana was found seated on the driver's side of her blue Mustang, slumped over to the passenger side. Her left leg was hanging out of the driver's side door. An assistant medical examiner, who performed an autopsy on Dana, testified that Dana, while seated in her car, had been shot five times in the face and head from a distance of 18 to 24 inches. Three gunshot wounds to her hands also suggested that Dana had raised her hands in front of her face in an attempt to protect herself. The cause of death was determined to be multiple gunshot wounds.

After arriving on the scene shortly after discovery of Dana's body, police officers found six .22-caliber spent shell casings and one .22- caliber live round on the ground close to Dana's car. The live round had an indentation indicating the firing pin had struck the bullet but did not discharge it. A firearms tool mark examiner later concluded that the six shell casings and the live round were all .22 Long Rifle caliber and had been fired from the same weapon. In addition to the casings and the bullet, police officers found Dana's gloves, which she was wearing, and her purse in the car, both of which displayed bullet holes. No fingerprints were found in the car.

Police officers interviewed a number of Dana's neighbors, including Paul Skorupa, shortly after the discovery of the body. When Skorupa returned home around 11:45 p.m. on February 17, 1988, he nearly rear-ended a 1987 or 1988 red Nissan Pulsar in the apartment complex's parking lot. Under lighting conditions which he described as "pretty good," Skorupa could see the passenger in the car. Skorupa viewed a group of photographs three days later, picked out defendant's photograph, and said that defendant "looked like" the passenger in the Nissan Pulsar. Skorupa, however, was unable to identify anyone at a lineup conducted five years later. When Skorupa last saw the red car, it was parked toward a cul-de- sac at the end of the driveway. Skorupa did not see the victim's car at this time. On cross-examination, Skorupa acknowledged that he had seen another red Nissan Pulsar parked in the apartment complex parking lot a few days after the murder. On redirect, however, he testified that it did not resemble the car he had seen on the night of the murder.

Neighbor Tyrone Miller testified that he heard his dog barking sometime between midnight and 12:30 a.m. on the night of the murder. When he looked out his upstairs bedroom window, Miller saw a man jogging or walking fast down the street. The man stopped below Miller's window, looked at Miller, and ran away. Miller got a good look at his face and identified co-defendant Michael Permanian in open court. Miller also identified Permanian as the man he had seen the night of the murder, during a photograph array conducted a few days after the murder, as well as at a lineup held five years after the murder. The last thing that Miller observed on the night of the murder were headlights leaving the area. On re-cross-examination, Miller acknowledged that if asked by the police to make an identification, he would falsely identify someone about 10% of the time based upon his mood.

During the early morning hours of February 18, 1988, police officers also interviewed the victim's husband, Joseph Rinaldi, who cried upon learning of Dana's death. When officers asked Rinaldi if he knew anyone who owned a small red sports car, Rinaldi offered the name of his friend Michael Permanian. Permanian was later photographed getting out of a red Nissan Pulsar at Dana's wake. It was later confirmed that Permanian was the owner of a red 1988 Nissan Pulsar.

No arrests were made in this case until June 10, 1993 following grand jury testimony by Tammy Behenna, defendant's former girlfriend, and John Apel, Sr., defendant's uncle. These witnesses along with Joseph Rinaldi testified for the State. Rinaldi testified in exchange for, among other things, the prosecutor's promise to recommend a 40-year sentence, although he later received a sentence of 60 years' imprisonment after pleading guilty to murder, conspiracy, and solicitation. Rinaldi testified that he had married Dana in 1980, and they began having marital problems in the fall of 1987 when the couple was deeply in debt. About this time, Rinaldi began meeting with Michael Permanian, a close friend since childhood who had served as best man at his wedding.

Rinaldi indicated to Permanian that he was having marital problems and wanted to have his wife killed because divorce was not an option given their debts. Permanian suggested that Rinaldi meet with defendant because defendant might be able to help Rinaldi with his problem. Rinaldi also had been acquainted with defendant since his childhood. Prior to the murder, Rinaldi met with both Permanian and defendant, both of whom agreed to kill Dana. Defendant even pointed to a gun tucked in his waistband when Rinaldi asked how he would do it. Rinaldi informed them that he wanted it to look like a botched robbery attempt and defendant and Permanian agreed. Rinaldi provided defendant and Permanian with background information regarding Dana's employment and their apartment complex, the Wyndham Court Apartments. Rinaldi drew a map of the complex indicating the exact location where Dana usually parked her car. Rinaldi also informed defendant and Permanian about a $50,000 life insurance policy he had obtained on Dana's life and agreed to give them half of those proceeds. After investigating the matter, defendant and Permanian reported to Rinaldi that the apartment complex was the best place to kill Dana. Defendant and Permanian announced that they planned to commit the murder on February 17, 1988, and Permanian indicated that they would steal a car. Permanian suggested that Rinaldi go out on the night of the murder and page him as soon as he was finished talking to the police.

Rinaldi further testified that he called his friend Jim Groszka and persuaded him to go drinking with him in downtown Chicago on the night of February 17, 1988. Groszka later corroborated this in his own trial testimony, adding that he was surprised by Rinaldi's call and agreed to go out because Rinaldi was insistent. Groszka testified that he and Rinaldi were together at several bars in Chicago from 9 p.m. on February 17, 1988, until about 4 a.m. on February 18, 1988.

On February 17, 1988, Rinaldi visited his wife at work, which was 10 miles from their home, and took her out to dinner. Jennifer Sparesus, one of Dana's co-workers, corroborated Rinaldi's testimony regarding his visit at the office, and his announcement that he was going downtown later that night. Dana returned to the office after dinner. Sparesus testified that she last saw Dana around midnight when Dana indicated that she was going home.

Rinaldi testified that he returned home sometime after 4 a.m. Upon arriving home, Rinaldi knew the murder had been carried out because he saw Dana's car being towed away.

Following the murder, Rinaldi testified that he received more insurance proceeds than he originally anticipated. Rinaldi received approximately $137,000. Rinaldi had originally agreed to pay defendant and Permanian $25,000, and he did not immediately inform them of the additional funds. Rinaldi began making weekly payments to defendant and Permanian shortly after the murder. Permanian later contacted Rinaldi and informed him that he and defendant had learned about the additional insurance proceeds. Rinaldi agreed to pay defendant and Permanian $55,000. Rinaldi had meetings with defendant and Permanian regarding the insurance proceeds. Rinaldi testified that he was threatened by defendant and Permanian with respect to making payments to them and speaking to the police.

Rinaldi testified that, on September 28, 1993, while he, defendant and Permanian were in a holding cell awaiting transportation for a court appearance, Permanian talked about how he and defendant had driven to Indiana at speeds exceeding 100 miles per hour after the murder, where they disposed of the clothes and gun used to commit the murder. Both defendant and Permanian were laughing as they recalled how officers had dragged Lake Michigan looking for the gun.

Rinaldi further recounted how, in late October, while all three men were in a lockup, Rinaldi saw defendant and Permanian re-enact the murder. Permanian sat on a bench while defendant stood over him, defendant's hand pointed at Permanian's head, and defendant's index finger stuck out as if he were holding a gun. After Permanian put his hand up by his face, defendant indicated that was how he shot Dana. Defendant also indicated that the gun had jammed during the shooting.

Rinaldi testified that, in January 1995, he had a conversation with defendant and Permanian before he testified at a suppression hearing on a defendant's motion to suppress his statements to police. Both defendant and Permanian coached him in an effort to get his statements suppressed. They advised him to testify that officers had threatened him, offered leniency to him, and denied his requests for counsel. When Rinaldi testified at the suppression hearing, he claimed coercion. At trial, however, Rinaldi admitted that he had perjured himself in that testimony.

Tammy Behenna, defendant's former girlfriend, testified for the State at trial. Behenna met defendant in 1987. Defendant and Behenna occasionally spent the night at her apartment prior to moving in together in October, 1988. They lived together until July 1, 1991. Defendant and Behenna had a child together, a son. Behenna recounted the events of February 17, 1988, in her testimony. According to Behenna, defendant got up around 11 p.m. and put on a suit. Defendant then left the apartment and did not return that night. Defendant called Behenna the next morning, February 18, 1988, and informed her he was okay and was going out to eat. Defendant returned to the apartment later that morning and went back to bed. When he heard a radio news report, however, he jumped out of bed and screamed, "That can't be right. They can't have a suspect." Behenna overheard defendant then make a phone call, during which he mentioned the name "Mike." Later that day, defendant called Behenna at her office and informed her that he had to meet "Mike" and that "they were going to make a deposit in Lake Michigan." On the evening of February 18 or 19, 1988, defendant asked Behenna to listen to a tape recording of a conversation between Permanian and Rinaldi. Defendant asked her if Rinaldi sounded like a man who had spent two months practicing his crying. Behenna recalled that defendant made a lot of phone calls on February 18 and 19, and that he clipped a lot of newspaper articles about the Rinaldi murder.

Behenna testified that, when she was subpoenaed to appear before the grand jury in April of 1988, she claimed the fifth amendment privilege, as defendant had advised her, and refused to testify. Behenna testified that when she was served with the subpoena to appear before the grand jury, defendant informed her that people can die in a number of ways, including being struck by a car while crossing the street. Defendant then had Behenna cross the street to mail a letter. Behenna stated that defendant had a conversation with her about the

Rinaldi murder in August of 1988, when they visited Great America amusement park. Defendant stated to Behenna that "I want you to picture this. It's cold outside. It's late. It's dark ... somebody is just coming home from work.... And I walk up to her car and point a gun at her. And she says `what are you doing?' And then she put her hand up, and then I shot her five times." Behenna stated that defendant was smiling when he relayed this information to her. Behenna also recounted that, in July of 1990, defendant walked up to her, put his finger to her head, and impersonated a woman's voice as he said: "What are you doing?" Defendant then said "bang" five times.

Behenna further testified that, sometime in February of 1988, or the fall of 1989, defendant mentioned Joe Rinaldi and that he was angry with Rinaldi and that he wanted Rinaldi to pay him for a job he had done. In the fall of 1989, Behenna saw defendant kneeling on the floor of their bedroom, counting what appeared to be a large amount of cash. Defendant looked at the money and asked, "Is this worth a life?"

On cross-examination, Behenna admitted that she had engaged in a sexual relationship with Permanian in 1991, just before she and defendant stopped living together. Behenna stated that she stopped living with defendant after July 1, 1991, and moved in with her parents. Behenna began cooperating with the police in September of 1991, and testified before the grand jury in May of 1993. Behenna acknowledged that she was involved in ongoing litigation with defendant and his parents regarding visitation with her son.

John Apel, Sr., defendant's uncle and a Chicago police officer, also testified for the State. Apel testified about a number of incriminating statements defendant made to him. On February 18, 1988, around 6 p.m., defendant called him at home and told him to watch the news that night. Apel did so and heard an account of the Rinaldi murder. Defendant called him again that night to confirm Apel had watched the news, and defendant specifically referred to the murdered girl in Palatine, at which time defendant began laughing.

Sometime in May of 1988, defendant unexpectedly arrived at Apel's home. Defendant honked the horn repeatedly and drove partially onto Apel's driveway and his neighbor's lawn. Defendant admitted to Apel that he had killed Dana Rinaldi and provided details, including how he had stuck a gun to her head and pulled the trigger, and how she had thrown up her arms with a terrified look on her face. Defendant relayed that he laughed when he shot her in the head. Defendant also told Apel that the gun had jammed at one point. After relaying this information, defendant threatened that he would kill the members of the Apel family if his uncle said anything.

On cross-examination, Apel admitted that he did not inform anyone at the police department or make a written report about these admissions by defendant. Apel also admitted that he had claimed the fifth amendment privilege when he appeared before the grand jury in May of 1988. Apel explained that he did so because he was afraid of defendant. Apel stated that he did discuss defendant's statements when subpoenaed to appear before the grand jury a second time, in May of 1993, after defendant was in jail. Apel also admitted that he continued to engage in a business relationship with defendant even after the driveway conversation described above because defendant is a "pushy kind of person" and because "[i]t is either you are his enemy or you are his friend." Apel's son, John Floyd Apel, also testified at defendant's trial. John corroborated his father's testimony about the conversation in the driveway of the Apel home in May of 1988. He also testified that he was present for another conversation with defendant in which defendant stated that "he could kill anyone just like he had killed the Rinaldi girl." John believed that this conversation had taken place in the fall of 1992, although he stated he could not recall the date with certainty, only that it was before defendant was incarcerated. The parties later stipulated that defendant had been continuously incarcerated in the Cook County jail from April 8, 1992, on another charge to the time of this trial.

Defendant called two witnesses, Todd Pugh, a law student working for the defense, and John Eierman, an investigator for the defense, to rebut the testimony of the State's witness Tyrone Miller. Pugh, Eierman and counsel for Permanian visited the Rinaldi's apartment complex, Wyndham Court, on February 18, 1996, to test the accuracy of Miller's observations. Each took a turn looking out the lower-level window of Miller's former apartment, and out the second-story window of a neighboring apartment, while another walked or jogged past the apartment. Both Pugh and Eierman testified they could not make an identification from that vantage point. On cross-examination, Pugh and Eierman acknowledged they did not know the lighting conditions on the actual day of the murder, nor did they know to what extent trees and bushes might have grown since then to obscure their vision. Moreover, both witnesses admitted they did not look out the bedroom window at which Miller was standing when he saw Permanian. Eierman also testified that the others could not see the headlights in the manner suggested by Miller when Eierman drove his car behind the clubhouse. Eierman, however, admitted that they did not attempt the experiment with a 1988 Nissan Pulsar.

Defendant called a final defense witness, Cook County sheriff's police officer Ronald Russell, to impeach the testimony of State's witness Paul Skorupa. Russell acknowledged that he had prepared a police report in which he reported that Skorupa saw the victim's blue Mustang parked on the street when he returned home around 11:45 p.m. On cross-examination, however, Russell testified he had erred when he drafted the report because Skorupa indicated that, although he saw the victim's car parked on the street in the past, he did not see the victim's car on the night of the murder.

In the State's rebuttal case, Palatine police officer John Saurmann testified he was sent to the Wyndham Court apartments on February 18, 1996, after someone reported suspicious people on the premises. Saurmann saw Pugh, Eierman and Permanian's attorney at the apartment complex. Although he stayed for some time, Saurmann did not see any of the men walk up and down the street and then look up at the apartment window. Saurmann stated that no one asked him if he could identify anyone from where he stood by the apartment.

In surrebuttal, defendant presented co-defendant Permanian's attorney to contradict the evidence given by Saurmann. He testified that, when he asked Saurmann, who was standing by the apartment, if he could identify Pugh or Eierman, who were by the street, Saurmann replied that he could not.

After considering the aforementioned evidence, the jury returned verdicts finding defendant guilty of murder and conspiracy to commit murder. The sentencing hearing was conducted before the trial Judge because defendant had previously waived a jury for sentencing. After the State provided evidence that defendant was over 18 years of age, and the trial Judge took judicial notice of the verdicts and the trial testimony, the trial Judge found defendant eligible for the death penalty because the murder had been committed pursuant to a contract. Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(5).

The State then presented extensive evidence in aggravation. Assistant Cook County State's Attorney Patrick Quinn testified that inmate Charles Russell called him on June 3, 1993, and that he and Detective John Duffy later visited Russell in the Kendall County jail. Russell stated that, sometime before April of 1993, when he was in Cook County jail, defendant asked him to find someone to kill a woman named Tammy.

Defendant said the woman planned to testify against him in his aggravated battery and murder cases. Russell agreed to do so for $25,000, with half to be paid up front. When he talked to Quinn, Russell stated that he had already received $11,000 through intermediaries. When Quinn sought to verify Russell's story, he learned that Russell had been on the same jail tier as defendant. Quinn met with Russell again on June 11 in the company of Officers Dornbos and Duffy. Russell repeated the same story and said he had already received $11,000 from defendant. Russell gave Quinn a note with Behenna's name on it, which Quinn submitted for analysis. After comparing the note with the known handwriting of defendant, forensic document examiner Maureen Casey-Owens concluded that defendant had written the note. Russell later offered to wear a transmitting device and requested that Quinn help him with his existing prison sentence. Quinn refused and his contacts with Russell then ended.

The State also presented evidence of defendant's solicitation to murder John Apel, Sr. Quinn testified that he was contacted in January of 1994 by Detective Mike Fleming, who reported that he had a note that had been seized during a routine search of inmate Maurice Coleman's cell at Cook County jail. The note refers to John Apel, Sr., describes where he lived and worked, contains maps, and contains other personal information about Apel. When Quinn talked to Coleman in January of 1994, Coleman told him that defendant had given him the note and asked him "to see to it" that the police officer named therein (John Apel, Sr.) was murdered. Coleman added that defendant had deposited $900 in his commissary account, and Quinn verified that Coleman had indeed received $900 in his account at the time he said he had talked to defendant. Coleman wanted Quinn to help him with a pending murder charge, which Quinn could not do. Document examiner Casey-Owens concluded that defendant had written this note as well as the Behenna note. Officer Duffy corroborated Quinn's testimony about the Apel contract.

The State also presented evidence of defendant's criminal record. The State presented a police "rap sheet" showing defendant's numerous prior arrests. The State also showed that, before his sentencing hearing in this case, defendant had been convicted of aggravated battery, aggravated unlawful restraint and two counts of unlawful use of weapons. The State also produced newspaper clippings which described crimes that defendant had been charged with committing. Apel, defendant's uncle, testified that, shortly after each crime, defendant gave him a newspaper clipping about defendant's involvement in a crime. The State then presented testimony about defendant's alleged involvement in the burglaries of several department stores, "road rage" incidents in which defendant displayed a gun, defendant's fire bombings of fellow students' homes and threats to them while in college, defendant's threats to Tammy Behenna and her family, and defendant's threats to an attorney who had previously represented defendant.

The State also presented evidence of defendant's gun purchases and possession of weapons. Cook County sheriff's police detective Thomas Mayton was assigned to investigate the Rinaldi murder, and he checked the records of various gun shops. Detective Mayton found that defendant, prior to the murder, had purchased various types of handguns and rifles. Defendant was also found in possession of two different guns when he was arrested on two occasions in 1990. Moreover, on three different occasions in 1991 and 1992, when defendant was arrested on unrelated charges, police officers discovered a considerable amount of ammunition of different types and caliber and various weapons in defendant's possession. In addition, when Cook County corrections officer Thomas McInerney conducted a random search of defendant's cell on July 6, 1993, he found two razors under defendant's bunk and a pair of scissors inside the mattress. Defendant admitted possession of the razors in a disciplinary hearing.

Following the State's case in aggravation, the defense presented the following evidence in mitigation. Pat Marz testified that defendant had dated her daughter, and that he was a "gentleman" and "very respectable."

Anthony Goldstein, defendant's stepbrother, testified that he has known defendant all his life. Defendant is a "good man" who took in homeless people and who allowed them to live in buildings that he owned. Defendant, however, did not live with Goldstein when he lived in Indiana between the ages of 9 and 18.

Alvin Goldstein, defendant's stepfather for 27 years, provided a more comprehensive account of defendant's life. Goldstein described defendant as an intelligent child who learned things quickly. For example, defendant managed to pass exams after cramming at the last minute. After graduating from college, defendant became a paralegal and opened a real estate business. Goldstein testified that, "as an adult, he was just superb." Defendant showed respect for older relatives, protected his siblings, supported Tammy Behenna, and took in homeless persons. On cross-examination, Goldstein acknowledged that defendant had not lived with him for the last 14 years.

Several professional acquaintances testified on behalf of defendant. Patti Werner knew defendant in the real estate business and briefly dated him. According to her, defendant acted like a gentleman and treated her "great." John Manglardi also knew defendant from the real estate business. He knew defendant to be helpful and trustworthy. Deborah Fiorito, an attorney, represented defendant in an unrelated matter. Fiorito recalled that defendant's father had abandoned his family. She, however, was not aware of defendant's criminal background. Nicholas Wayne grew up in defendant's neighborhood and stated that he has known defendant for 20 years. According to Wayne, defendant treated him well and was never violent.

Cleatus Coleman, a business associate of defendant's parents, described defendant as smart, energetic and "above board." He saw defendant once or twice a month, but defendant stopped visiting him at his store seven to nine years before the trial.

Andy Gonzalez, a volunteer chaplain at Cook County jail, testified that defendant was "wild and crazy" when he first came to him for counseling in the county jail. In his opinion, however, defendant is now calm and well behaved and a positive influence on other inmates.

After considering the evidence in aggravation and mitigation, the trial Judge concluded that there were no mitigating factors sufficient to preclude the death penalty and sentenced defendant to death for the murder of Dana Rinaldi.

Co-defendants Joseph Rinaldi and Michael Permanian were jointly indicted on charges of murder and conspiracy, with Rinaldi additionally indicted on a charge of solicitation (Ill. Rev. Stat. 1987, ch. 38, par. 8-1(a)). Rinaldi ultimately pled guilty in a separate proceeding and was sentenced to 60 years' imprisonment. With respect to Permanian, the trial court severed his case from defendant's case but conducted their trials jointly before separate juries. A jury found Permanian guilty of two counts of first degree murder and one count of conspiracy. Permanian received a sentence of 75 years' imprisonment.

Additional relevant facts are set forth in the analysis portion of the opinion where necessary for a thorough Discussion of the issues.

ANALYSIS

I. Pretrial Issue

A. Speedy Trial

Defendant argues that the trial court abused its discretion in denying his motions to dismiss the indictment because the delay between his arrest on June 10, 1993, and the commencement of his trial on January 25, 1996, violated his statutory right to a speedy trial. Defendant therefore requests that we reverse his conviction.

Initially, we note that an accused has a constitutional right to a speedy trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8. An accused also has a statutory right to a speedy trial under section 103-5 of the Code of Criminal Procedure of 1963 (speedy trial statute), which specifies the periods of time within which an accused must be brought to trial. 725 ILCS 5/103-5 (West 1994). The constitutional and statutory provisions address similar concerns; however, the rights established by each of them are not necessarily coextensive. See People v. Ramey, 151 Ill. 2d 498, 525-26 (1992); People v. Garrett, 136 Ill. 2d 318, 323 (1990). In the present case, defendant asserts only a violation of his statutory right to a speedy trial and does not raise a constitutional issue.

Section 103-5(a) provides that an accused in custody must be brought to trial within 120 days from the date he was taken into custody, unless delay is occasioned by the defendant. 725 ILCS 5/103-5(a) (West 1994). Defendant was in custody from his arrest until trial and section 103-5(a) therefore applies. A delay is occasioned by the defendant and charged to the defendant when the defendant's acts caused or contributed to a delay resulting in the postponement of trial. See People v. McDonald, 168 Ill. 2d 420, 438 (1995); People v. Turner, 128 Ill. 2d 540, 550 (1989); People v. Reimolds, 92 Ill. 2d 101, 106 (1982). A defense counsel's express agreement to a continuance may be considered an affirmative act contributing to a delay which is attributable to the defendant. See Reimolds, 92 Ill. 2d at 106. The defendant bears the burden of affirmatively establishing a speedy-trial violation, and in making his proof, the defendant must show that the delay was not attributable to his own conduct. See People v. Jones, 104 Ill. 2d 268, 280 (1984). Any period of delay occasioned by the defendant temporarily suspends the running of the speedy-trial period until the expiration of the delay, at which point the statute shall recommence to run. 725 ILCS 5/103-5(f) (West 1994); see McDonald, 168 Ill. 2d at 438-39; People v. Bowman, 138 Ill. 2d 131, 149 (1990). An accused not tried within the mandate of section 103-5(a) must be discharged from custody, and the charges must be dismissed. See Bowman, 138 Ill. 2d at 137. The trial court's determination as to who is responsible for a delay of the trial is entitled to much deference, and should be sustained absent a clear showing that the trial court abused its discretion. See McDonald, 168 Ill. 2d at 438; People v. Bowman, 138 Ill. 2d 131, 137 (1990); Reimolds, 92 Ill. 2d at 107. With these principles in mind, we now examine the periods of alleged delay in the instant case.

The first period at issue is the 47 days between June 10, 1993, and July 27, 1993. As noted, defendant was arrested on June 10, 1993, for the murder of Dana Rinaldi, and the 120-day period commenced on that date. According to the common law record, which contains the trial court's memorandum of orders, commonly referred to as "half-sheets," and the transcript of proceedings, the parties first appeared in court on June 11, 1993, when the trial court conducted a probable cause hearing and denied bail. At the Conclusion of this hearing, the trial court continued the case until June 22, 1993. The State on appeal concedes that these 12 days are not delays attributable to defendant. The record reveals that the parties next appeared before the court on June 22, 1993, at which time the trial court entered a continuance by agreement of the parties to July 27, 1993. Although there is no transcript available for the proceedings dated June 22, 1993, the record is not silent concerning the reason for the delay because the record includes the half-sheets contained in the common law record. See People v. Sojak, 273 Ill. App. 3d 579, 582-83 (1995). According to both the half-sheet and an order entered by the trial court on June 22, 1993, defendant filed a motion to set bail, which was entered and continued by agreement of the parties to July 27, 1993. In general, an agreed continuance constitutes an affirmative act of delay attributable to the defendant which tolls the speedy-trial term. See Turner, 128 Ill. 2d at 553; People v. Plair, 292 Ill. App. 3d 396, 398 (1997). Given that the continuance was by agreement, this period of time is attributable to defendant.

Defendant argues, however, that the State, during a hearing on a motion to dismiss the indictment on speedy-trial grounds on June 5, 1995, conceded, and the trial court accepted, that the 34-day delay between June 10, 1993, and July 14, 1993, was not attributable to defendant. At that same hearing, prior to the State's concession, the trial court indicated that the record showed a continuance by agreement between June 11, 1993, and July 27, 1993. The trial court nevertheless accepted the State's concession. We find that the trial court abused its discretion in attributing this delay to the State. See Bowman, 138 Ill. 2d at 139 (in a criminal case, a factual determination by a trier of fact is entitled to great weight, but where the record does not support the finding, this court must reverse). As noted above, the record clearly establishes a continuance by agreement of the parties during this period. Consequently, only 12 of the 47 days between June 10, 1993, and July 27, 1993, should not be attributed to defendant and thereby computed within the 120-day period.

The next period at issue is the 130-day delay between March 14, 1994, and July 22, 1994. Prior to March 14, 1994, defendant filed a series of motions, including a motion for discovery, a motion for substitution of Judges, a motion to dismiss indictment, a motion for severance, a motion to suppress statements, and a motion to suppress "message unit detail records" and telephone records. Defendant on appeal concedes, and the record reflects, that he agreed to a series of continuances from July 27, 1993, until March 14, 1994. Defendant contends, however, that the period between March 14, 1994, and July 22, 1994, is not attributable to him because he had to wait for the court to assign another Judge to hear his pending motions. We reject defendant's claim because this delay resulted from his filing of the aforementioned motions. A delay occasioned by the processing of the defendant's motions, including the time required for the State to respond and the time necessary for the court to hear and decide the issues, is attributable to the defendant. See McDonald, 168 Ill. 2d at 440; Jones, 104 Ill. 2d at 280.

A detailed review of the events occurring between March 14, 1994, and July 22, 1994, reveals that this delay is attributable to defendant. On March 14, 1994, Judge Kavitt, who recused himself from defendant's case on February 10, 1994, granted Permanian's lawyer leave to file a severance motion. Defendant's attorney did not attend this March 14 proceeding. Judge Kavitt continued the case until April 15. This period of delay is chargeable to defendant. When a defendant's attorney fails to appear in court at the appointed time, his absence causes a delay attributable to the defendant. See Bowman, 138 Ill. 2d at 141; People v. Hairston, 46 Ill. 2d 348, 354 (1970); see Sojak, 273 Ill. App. 3d at 584.

On April 15, 1994, when the parties appeared, Judge Kavitt reminded the parties that he could not proceed on defendant's motions, and that defendant's case would be assigned to a different Judge after he had decided Permanian's severance motion, at which time he would know how many Judges would be needed to hear the cases. Defendant's attorney agreed that defendant had no reason to pursue his own severance motion at this time because defendant would receive a separate trial as long as the Judge granted his co-defendant's motion for severance. Judge Kavitt continued the case for a hearing on the severance motion by agreement to May 6, 1994. We note that a defendant has the primary duty to call his motions for hearing and Disposition. See People v. Donalson, 64 Ill. 2d 536, 542 (1976). Moreover, when defense counsel replied "that would be just fine" to the continuance, he expressly agreed to the continuance. See People v. Arsberry, 242 Ill. App. 3d 1034, 1039 (1993). A defendant is bound by the acts or omissions of his counsel. See Bowman, 138 Ill. 2d at 141. Consequently, defense counsel's failure to call defendant's motion for severance for hearing and Disposition, and counsel's agreement to the continuances during this period, resulted in a delay attributable to defendant.

The parties next appeared on May 6, 1994, when Judge Kavitt considered Permanian's motion for severance. The State agreed to the severance and the trial Judge granted the severance of all three cases. Judge Kavitt thereafter transferred the cases to Judge Hoffenberg. On that same day, Judge Hoffenberg noted that defendant had previously removed him via a substitution-of-Judges motion, precluding him from hearing matters relating to defendant. Judge Hoffenberg continued the case by agreement of co-defendants' attorneys to June 17, 1994, for a hearing on the motions. Once again, defense counsel did not attempt to call his motions for hearing at this time. Rather, defense counsel stated that he wanted to be there on June 17, 1994, to hear the co-defendant's motions. In response, Judge Hoffenberg continued defendant's case by agreement to June 17, 1994, for status. On June 17, 1994, defense counsel moved the court to assign a Judge to hear his motions. Defendant's motion was allowed and all three cases were transferred to Judge Bierman.

Defendant's and co-defendants' attorneys agreed to a continuance to July 22, 1994, for status so that Judge Bierman could hear all pending matters. The period between May 6, 1994, and July 22, 1994, is a delay occasioned by defendant because it arises from defense counsel's failure to call his motions for hearing and from defendant's prior motion for substitution of Judge, which results in a delay that includes the actual reassignment to a new Judge. See People v. Spicuzza, 57 Ill. 2d 152, 155 (1974); People v. Turley, 235 Ill. App. 3d 917, 920 (1992); People v. Helton, 153 Ill. App. 3d 726, 730 (1987). We therefore conclude that the speedy-trial period was tolled from March 14, 1994, to July 22, 1994, because of defense counsel's actions and defendant's motions.

The next period at issue is the 21-day period from August 24, 1994, to September 14, 1994. On July 22, 1994, defense counsel agreed to continue the case with respect to the pending motions until August 24, 1994, for a hearing on pending motions. On August 24, 1994, the trial court continued the case on the State's motion to September 14, 1994. The State now concedes and the record reflects that this 21-day delay is not attributable ...


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