Appeal from the Circuit Court of Cook County No. 96 CR 25194 The Honorable Michael Bolan, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
The defendant, Craig Childress, was convicted of attempted aggravated criminal sexual assault following a bench trial and sentenced to 29 years in prison. Defendant was acquitted of attempted murder. The defendant filed a timely notice of appeal.
On appeal, the defendant argues that: (1) he was denied his right to a speedy trial; (2) the trial court abused its discretion in ruling that the prosecution could introduce evidence of defendant's prior crimes in rebuttal to show intent; (3) the State failed to prove defendant guilty of attempted aggravated criminal sexual assault beyond a reasonable doubt; (4) defendant's conviction for attempted aggravated criminal sexual assault was legally inconsistent with his acquittal for attempted murder; (5) multiple sentencing errors entitle defendant to a new sentencing hearing; and (6) he was denied the effective assistance of counsel.
Defendant was charged with attempted first-degree murder (count I) and two counts of aggravated criminal sexual assault (counts II and III).
Before trial, defendant filed several pro se motions to dismiss defense counsel from the public defender's office, alleging that counsel was engaged in a conspiracy to "railroad him" into imprisonment. In his written motions, defendant alleged that counsel withheld discovery from him and discussed pending charges with the State's Attorney. The judge declined to entertain defendant's pro se motions and advised defendant that he could not proceed pro se and simultaneously exercise his right to counsel. Defendant indicated that he required an attorney to represent him and his counsel subsequently declined to adopt defendant's motions. On September 9, 1997, the trial court again denied defendant's motion to dismiss counsel where he alleged that counsel failed to aid him in a separate civil case. The trial court also refused to allow defense counsel to withdraw, although defense counsel asserted that defendant had filed Attorney Registration and Disciplinary Committee (ARDC) complaints and lawsuits against him. In January 1998, a supervising attorney from the public defender's office filed an appearance as co-counsel. From that point onward, he was the only attorney that appeared on behalf of defendant. Defendant filed no ARDC complaints or lawsuits against subsequent counsel.
Before trial, the State filed notice of its intent to present evidence of other crimes, consisting of a 1988 rape, burglary and related convictions in Kentucky and a misdemeanor conviction in Canada. The State conceded that none of the convictions could be offered as evidence of modus operandi, but said that they were offered as evidence of intent. Defense counsel argued they were too remote from and dissimilar to the charged offenses to satisfy the requirements for admission as evidence of intent. The trial court ruled that the Kentucky convictions would be admissible only in rebuttal to prove intent. Because of this ruling, defendant alleges that he did not testify.
The State called several witnesses including the victim M.K., M.K.'s neighbor Jeffrey Ray, Officer Patricia Gill and Detective Rinaldo Guevara. M.K. testified that on May 5, 1996, she first met defendant at her apartment while she was hosting a party. Defendant was a houseguest of M.K.'s brother and sister-in-law, Jennifer. M.K. did not have a conversation with defendant that evening and he left with Jennifer. Later that week, Jennifer complained of having an indefinite houseguest so M.K. suggested that defendant could spend the night at her apartment on the night of May 14, and Jennifer could pick him up the next morning.
On May 14, 1996, M.K. worked as a bartender at Lottie's. That evening, Jennifer dropped defendant off at Lottie's and introduced defendant to several friends before she left. M.K. served defendant several drinks but did not speak to him at that time. Around 11 p.m., defendant, M.K. and two of M.K.'s friends left for another bar, the Double Door. M.K. consumed two beers and defendant drank a gin and tonic. Defendant was involved in a scuffle because he picked up the wrong coat and was kicked out of the bar. M.K. and her friends met defendant at another bar. Defendant was falling asleep at the bar with a drink in front of him. M.K. stated she was embarrassed by defendant's behavior and decided to go home.
When M.K. and defendant arrived at her apartment, defendant wandered into her bedroom. M.K. informed him that he would be sleeping in the guest bedroom down the hall. M.K. was clearing laundry from the guest bed when the phone rang. The phone was located on the wall just outside the bedroom. As soon as M.K. hung up the phone, defendant struck her with his fist on the side of her head.
M.K. fell and defendant continued to hit her in the face. Defendant threw M.K. on the guest bed and continued to punch her. Defendant choked M.K. and said "I'm going to kill you, you stupid cunt, you bitch. I'm going to rape you." M.K. believed he said it about 15 times during the attack. M.K. was able to kick defendant off her and ran into the kitchen screaming that defendant could rape her but not kill her.
M.K.'s downstairs neighbor Jeffrey Ray testified that he heard banging noises from upstairs. He heard M.K. scream help and "I'm not going to let you rape me." He told his roommate Naomi to call the police. Ray grabbed a two-by-four and went upstairs to M.K.'s apartment.
M.K. testified that she ran from the kitchen to the front door and unlocked one of the two locks on the door. Defendant grabbed her ear with his teeth and threw her on the floor. Defendant bit M.K. and ripped off her shirt and bra. At this point, defendant was bare chested, bare foot and his pants were unzipped. Defendant called M.K. a "stupid bitch" and choked her. Ray then pounded on the front door.
When defendant turned to the door, M.K. ran to the door, unlocked it and ran out. Ray, who still had the two-by-four over his shoulder, noticed defendant was bare chested before he slammed the door. Ray also saw that M.K. was unclad from waist up. M.K. ran down the stairs and Naomi pulled M.K. into her apartment.
The police arrived 5 or 10 minutes later. M.K. said that she met them outside and spoke to Officers Murphy and Kurian. M.K. denied that she told the officers that there was a verbal argument between defendant and herself. The police searched M.K.'s apartment, but defendant was gone. M.K.'s neighbors called Jennifer and M.K. called Officer Patricia Gill. Jennifer threw M.K.'s blouse and bra and defendant's belongings into the garbage.
Officer Patricia Gill testified that she returned M.K.'s phone call on the morning of May 15, 1996. Gill suggested that M.K. go to the hospital and that Gill would meet her afterwards. When Gill saw M.K. at her apartment later that day, she noticed that M.K. had been beaten severely: her eyes were black and blue, her face was swollen red and there was dried blood on her neck. M.K. told Gill about the attack and showed Gill human bite marks on her upper back and arm. Officer Gill retrieved M.K.'s torn blouse and bra and defendant's shoes, shirt and coat from M.K.'s apartment and placed them in inventory at the Chicago police department.
On May 24, 1996, Detectives Rinaldo Guevara and Ernie Halvorsen interviewed M.K. and Jeffrey Ray about the incident. They proceeded to Area 5, where Ray identified defendant out of a photo array. A warrant was obtained for defendant's arrest on May 26, 1996. In September 1996, the detectives learned of defendant's whereabouts and proceeded to Abilene, Texas, to extradite him.
The court denied defendant's motion for directed verdict. The defense presented two witnesses: Officer Robert Murphy and Officer Bobby Kurian. Officer Murphy testified that he met M.K. on May 15, 1996. Officer Murphy searched M.K.'s apartment but did not find defendant. Murphy testified that M.K. told him that she had been on the telephone and that defendant woke up and began to beat her in the face. Murphy stated that M.K. mentioned a verbal argument without providing details. Murphy further stated that M.K. did not tell him that defendant threatened to kill and rape her and he classified the incident as a simple battery.
Officer Kurian agreed that M.K. told the officers that defendant was asleep and woke up just before they had a verbal argument. Kurian stated that M.K. never mentioned that defendant choked her or said that he was going to rape and kill her.
Defendant was acquitted of attempted murder (count I) and convicted on both counts of attempted aggravated criminal sexual assault (counts II and III). The trial court denied defendant's motion for a new trial. In aggravation, victims P.L. and C.V. testified concerning defendant's convictions in Kentucky that were entered on June 19, 1989. A certified statement of conviction revealed that defendant was previously convicted on five separate counts in Kentucky and sentenced as follows: (1) rape of P.L. in the first degree (10 years); (2) criminal attempt sodomy of P.L. (5 years); (3) burglary of C.V.'s residence (5 years); (4) unlawful imprisonment of C.V. (5 years); and (5) assault of C.V. (5 years). All five counts were to be served concurrently pursuant to defendant's guilty plea. Defense counsel argued in mitigation that defendant was a 32-year-old man who was exposed to drugs, alcohol, physical abuse and neglect as a child. Defendant had received a G.E.D. and served in the Navy as an aviation machinist. He earned a degree in addiction counseling while serving his prison term in Kentucky and was now confined to a wheelchair due to injury.
The State argued that defendant was eligible for a sentence of 4 to 15 years because his convictions were Class 1 felonies. The trial court refused to sentence defendant to consecutive terms because both counts II and III stemmed from the same transaction. Instead, the court sentenced defendant only on count II. The court imposed a 29-year extended-term sentence due to defendant's prior Kentucky convictions. The trial court denied defendant's motion to reconsider his sentence. The trial court denied defendant's speedy trial motion. Defendant appeals. We affirm.
Defendant argues that he was denied his right to a speedy trial for multiple reasons, and that therefore he has the right to be discharged. We disagree. The Illinois speedy trial act provides an enforcement mechanism for violations of the constitutional right to a speedy trial. 725 ILCS 5/103-5(a) (West 1998) (Speedy Trial Act); People v. Healy, 293 Ill. App. 3d 684, 689, 688 N.E.2d 786 (1997). The statute 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, by an examination for fitness ordered pursuant to Section 104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal. ***
(d) Every person not tried in accordance with *** this Section shall be discharged from custody ***." (Emphasis added.) 725 ILCS 5/103-5 (West 1998).
The defendant bears the burden of proof on his motion for discharge. People v. Beyah, 67 Ill. 2d 423, 427, 367 N.E.2d 1334 (1977). In determining whether "delay is occasioned by the defendant", courts will consider the facts "'to prevent a "mockery of justice" either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him.'" People v. Cunningham, 77 Ill. App. 3d 949, 951, 396 N.E.2d 876 (1979), quoting People v. Fosdick, 36 Ill. 2d 524, 529, 224 N.E.2d 242 (1967).
A delay is "occasioned by" or attributable to defendant when his affirmative act causes or contributes to it. People v. Turner, 128 Ill. 2d 540, 550, 539 N.E.2d 1196 (1989). Defendant's silence or failure to object to a continuance requested by prosecution is not an affirmative act attributable to defendant. Healy, 293 Ill. App. 3d at 690. However, when defense counsel verbally indicates to the trial court that he is agreeable to a continuance, he causes or contributes to the delay and the defendant is bound by his counsel's actions. Turner, 128 Ill. 2d at 553. A delay prompted by the processing of a defendant's motions, including the time required for the State to respond and the time necessary to hear and decide the issues, is also attributable to the defendant. People v. Cooksey, 309 Ill. App. 3d 839, 844-45, 723 N.E.2d 784 (1999).
In the instant case, defendant was arraigned on October 18, 1996, and his trial did not commence until August 12, 1998. During oral argument, defense counsel focused on the following five occasions for which the State admitted responsibility in its brief:
(1) September 14, 1996, to October 18, 1996 (34 days);
(2) October 18, 1996, to October 30, 1996 (12 days);
(3) February 3, 1998, to February 24, 1998 (21 days);
(4) March 26, 1998, to April 16, 1998 (21 days); and
(5) July 6, 1998, to August 11, 1998 (36 days) *fn1.
In the trial court, defense counsel made a posttrial motion claiming denial of defendant's speedy trial rights. The trial court denied the posttrial motion. However, no specific calculations were made in the trial court. On appeal, neither the State nor the defense counsel made a thorough factual presentation during oral argument on the speedy trial issue. Since the State admitted responsibility for continuances amounting to 124 days during oral argument, defendant contends that he must be discharged. Defendant has presented extensive argument contending that this court is bound by the State's admission at oral argument and cannot review the record de novo. We disagree. See People v. Kliner, 185 Ill. 2d 81, 116, 705 N.E.2d 850 (1998) (reviewing court is not bound by trial court's acceptance of State's erroneous concession to a 34-day delay, where the record established continuance by agreement for the period in question).
The record reveals that the State was responsible for items (1), (3), (4), and (5) noted above. The State was properly charged with item (1), which represented the time from defendant's arrest to arraignment. Similarly, the State was responsible for items (3) through (5) when it sought continuances to argue its motion to introduce evidence of other crimes.
However, we conclude that the State was not chargeable for item (2), a delay of 12 days from October 18, 1996, to October 30, 1996. The record indicates that defendant was arraigned on October 18 and the court appointed Mr. Scarnavack as public defender at this time. The court also ascertained defendant's medical needs at this point due to a prior ...