Appeal from Circuit Court of Coles County No. 97CF136 Honorable Ashton C. Waller, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In June 1997, the State charged defendant, Shawn Majors, with several counts of first degree murder for the May 1997 drowning death of Cheryl McRill. In March 1998, after a trial, the jury acquitted defendant of count I, which alleged defendant knew his acts would cause McRill's death (720 ILCS 5/9-1(a)(1) (West 1996)), but found defendant guilty of count II, which alleged defendant knew his acts would create a strong probability of death (720 ILCS 5/9-1(a)(2) (West 1996)), and count III, which alleged defendant killed McRill while committing a forcible felony (720 ILCS 5/9-1(a)(3) (West 1996)). In May 1998, the trial court entered a conviction on count II and sentenced defendant to 45 years' imprisonment. Defendant appeals, arguing (1) his speedy trial rights were violated with respect to counts I and II and his trial counsel was ineffective for failing to move to dismiss the case on speedy trial grounds; (2) his speedy trial rights were also violated with respect to count III, which the State filed February 11, 1998, and his trial counsel was ineffective for failing to move to dismiss the count on that basis; (3) plain error occurred since the public act that modified the statutory provision on automatic fitness hearings (Pub. Act 89-689, §90, eff. December 31, 1996 (1996 Ill. Laws 3775, 3792)) violates the single subject rule (Ill. Const. 1970, art. IV, §8(d)), the pretrial record showed he was taking psychotropic medication, and he was not afforded a fitness hearing; (4) the trial court erred by denying defense counsel's requests to give a second degree murder instruction based on provocation and an involuntary manslaughter instruction; and (5) he is entitled to amendment of the written judgment of sentence herein to reflect that his good-time credit should be calculated pursuant to section 3-6-3 of the Unified Code of Corrections (Unified Code) in effect prior to any truth-in-sentencing amendments thereto (730 ILCS 5/3-6-3 (West 1994)). We affirm and remand with directions.
On May 1, 1997, Cheryl McRill cashed two checks totaling just under $500. She took her daughter out to breakfast and shopping, spending approximately $100. McRill and her daughter lived together in Mattoon. Later that day, McRill spent several hours with George Vasquez, the father of three of her children. While they were together, McRill consumed several beers. In the early evening, Vasquez returned to his home in Arcola. Late that evening, McRill's daughter returned home and discovered that her mother was not present. When McRill did not come home the next day, the daughter and others began to search for her. McRill's car was discovered at a local tavern called CJ's, but McRill was not found. Several days later, McRill's body was discovered floating in Lake Paradise near Mattoon. Her purse was later discovered floating in the lake, with the money missing.
Defendant's brother, Scott Majors, testified that he lived with defendant and defendant's wife in a mobile home in Mattoon. On the evening of May 1, 1997, Scott and defendant's wife went out to several bars. As they returned home early in the morning of May 2, 1997, they received a cellular phone call from defendant, asking them to come home right away. Scott described defendant as very intoxicated when they got home. They eventually went to bed and the next morning Scott spoke to defendant, in defendant's wife's presence, about what had happened the night before.
Defendant stated he met McRill at CJ's tavern the night before. They went out to the car defendant was driving that night, and McRill passed out. Defendant went back into the tavern, returning to his car approximately one hour later. McRill then woke up and said she wanted to go somewhere and get high, after which they drove to Lake Paradise. They talked for a while, and McRill then got out of the vehicle and began walking around yelling something. Defendant got out and approached McRill to see what she was saying. McRill was yelling, "Rape!" Defendant stated that one way or another they both ended up in the water, and McRill was still yelling rape. Defendant said he panicked and, to shut her up, dunked her head under the water. When she came back up, she was unconscious. When defendant returned to his car, he noticed McRill's purse. He took approximately $400 out of the purse and threw the purse into the lake.
Defendant's wife substantially confirmed Scott's testimony concerning the statement made by defendant on the morning of May 2. At the request of the police, defendant's half brother, Rick Hall, agreed to secretly record a statement from defendant concerning the incident. In addition, defendant's mother testified about a conversation she had with defendant about the incident. Both the recorded statement and the description of the incident defendant gave his mother substantially conformed to the statement defendant made to his wife and brother Scott. Additional testimony showed defendant had been unable to afford a vehicle shortly before May 1, but that he paid $425 cash for a vehicle on May 2. Also, the forensic pathologist's testimony indicated that prior to death McRill received a blunt-force trauma to the head compatible with multiple blows to the head and a laceration to the nose compatible with contact between the nose and an object that crushed or tore the skin.
Defendant offered no evidence in his own behalf at trial. The jury returned the verdicts noted and the court sentenced defendant as stated. This appeal followed.
A. Speedy Trial Demand as to Counts I and II
Defendant argues that his right to a speedy trial was violated and that his attorney was ineffective for failing to move to dismiss on speedy trial grounds. Section 103-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 (West 1996)) implements the right to a speedy trial guaranteed by the Illinois Constitution. Ill. Const. 1970, art. I, §8; see People v. Reimolds, 92 Ill. 2d 101, 106, 440 N.E.2d 872, 874 (1982). Section 103-5 of the Code, in pertinent part, provides:
"(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.
(d) Every person not tried in accordance with *** this Section shall be discharged from custody ***." 725 ILCS 5/103-5(a), (d) (West 1996).
Accordingly, the State must bring a defendant to trial within the statutory period under the speedy trial statute. Reimolds, 92 Ill. 2d at 106, 440 N.E.2d at 875. However, on a motion to dismiss, the defendant has the burden of affirmatively establishing the violation of his right to a speedy trial, and where a delay is attributable to the defendant, the statutory period is tolled. Reimolds, 92 Ill. 2d at 106, 440 N.E.2d at 875.
Defendant's second claim regarding this issue, that he received ineffective assistance of counsel, must be Judged under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by the Supreme Court of Illinois in People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56 (1984). To establish ineffective assistance of counsel, a defendant must first demonstrate that his defense counsel's performance was so deficient that counsel was not functioning as the counsel guaranteed the defendant by the sixth amendment. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064, Second, a defendant must demonstrate prejudice by showing- that, but for defense counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Both prongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective assistance of counsel. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998).
However, because prejudice is assessed in light of the likelihood of success at trial, if prejudice has not been demonstrated, a reviewing court need not consider whether counsel's performance was deficient. People v. Pugh, 157 Ill. 2d 1, 14-15, 623 N.E.2d 255, 261-62 (1993). A court may, therefore, resolve ineffectiveness claims by reaching only the prejudice component. People v. Erickson, 161 Ill. 2d 82, 90, 641 N.E.2d 455, 460 (1994); Albanese, 104 Ill. 2d at 525-27, 473 N.E.2d at 1255-56. If a claim of ineffective assistance of counsel can more easily be disposed of on the ground of lack of sufficient prejudice, that course should be followed. People v. Hillenbrand, 121 Ill. 2d 537, 557, 521 N.E.2d 900, 908 (1988). Applying the prejudice prong to the instant case, defendant must show that, had his counsel moved to dismiss on speedy trial grounds, a reasonable probability exists that the trial court would have dismissed the charges against him.
Defendant was taken into custody on June 18, 1997, and remained in custody thereafter. Trial was originally set for September 30, 1997. On September 16, 1997, defendant requested that trial be delayed. He did not request a continuance to a specific date for a new trial. Rather, he requested that the matter be set for an October 27, 1997, status hearing. At the September 16 hearing, the trial court stated that it wished to discuss the speedy trial issue:
"THE COURT: I want to get the cards out on the table so everybody shares an understanding and we don't have any confusion down the road.
THE COURT: I want to be fair here but I think we need to be plain about the issue of the speedy trial.
THE COURT: I would be happy to give you a trial date today if you would like to have one. I'll try and work with you. That way both sides understand when the next trial is and I can talk to Mr. Majors about that.
[DEFENSE COUNSEL]: Your Honor, I believe we can stipulate that it is the parties' understanding that the 120[-]day rule--or 120 days is tolled until there is a new trial date set.
THE COURT: And would it be the shared understanding that it's tolled also from the time that trial date is set ...