Appeal from the Circuit Court of the 13th Judicial Circuit LaSalle County, Illinois No. 99-CF-300 Honorable James A. Lanuti Judge Presiding
The opinion of the court was delivered by: Justice Lytton
Defendant, Charles M. Swanson, was indicted for the offense of criminal sexual assault, in violation of the section 12-13 of the Criminal Code. 720 ILCS 5/12-13(a)(1) (West 1998). The State filed a motion for an extension of the speedy trial deadline under section 103 of the Code of Criminal Procedure to allow for complete DNA testing. 725 ILCS 5/103-5(c) (West 1998). The trial judge granted the motion. After a jury trial, the defendant was found guilty. Defendant appeals the granting of the State's motion. We affirm.
Debbie Aylward was visiting defendant's mother, Judy Hufton, at a vacation home Hufton rented in the summer of 1999. Defendant was also staying at the rental home.
On July 10, Aylward accompanied defendant to a family wedding, while Hufton was baby-sitting overnight at the home of a relative. After the wedding, Aylward and defendant returned to the home, watched a video and talked. Aylward fell asleep and when she awoke, the defendant was on top of her. Aylward told defendant, "No," and asked that he leave and go to his room. Defendant told Aylward that if she allowed him to have sexual intercourse with her, he would leave her alone. Aylward testified that after she initially balked, she acquiesced because she was frightened and defendant promised to stop harassing her if she agreed to sleep with him. Defendant testified, however, that Aylward initiated the intercourse and never resisted. In any case, defendant and Aylward then had sexual intercourse in the late evening of July 10.
On the morning of July 11, defendant asked Aylward if she intended to tell Hufton about their sexual encounter. Aylward told defendant that she did and testified that defendant then became angry, pinned her down, and attempted to have sexual intercourse again. The telephone rang, and when defendant went to answer it, Aylward broke free, ran to a neighbor's house and called the police.
Officer Michael Renner of the LaSalle County Sheriff's Department investigated the incident and spoke with Defendant on July 12. Renner testified that defendant told him that he forced Aylward to have sex with him on the night of July 10. Based on this information, defendant was arrested and charged with domestic battery, a misdemeanor. On July 21, defendant was charged with criminal sexual assault for the incident on the morning of July 11. The same day, Aylward was taken to the hospital where a physical evidence kit was taken. A blood sample was taken from the defendant on July 12. The evidence kit and blood sample were sent to the Illinois State Police crime lab on July 27 for testing.
The crime lab analyzed the evidence kit and notified the State on September 30 that it had identified DNA on the vaginal swab. The State then asked the crime lab to place the sample on the ASAP list to perform DNA testing. On October 6, the State filed a motion for a 30-day extension of the speedy trial deadline pursuant to section 103 the Code of Criminal Procedure. 725 ILCS 5/103-5(c) (West 1998). The trial court granted a 21-day continuance. After a jury trial, defendant was convicted of criminal sexual assault. The Illinois speedy trial statute requires the State to try a defendant, who is held in custody, within 120 days. In 1990, the legislature amended the statute to accommodate the use of DNA evidence that might otherwise be lost to a speedy trial deadline due to the time demands of DNA testing. Pub. Act 86-1210, eff. August 30, 1990. The amendment provides that a defendant can be held for an additional 120 days without trial if a trial court finds that 1) the State exercised diligence in obtaining the DNA evidence within 120 days, and 2) the results of the DNA testing are material to the case. See 725 ILCS 5/103-5(c) (West 1998).
Defendant contends that the trial court abused its discretion by granting the State's motion both because the State failed to prove diligence and the DNA evidence was not material.
The speedy trial statute must be liberally construed in defendant's favor because it enforces a constitutional right. See People v. Reimolds, 92 Ill. 2d 101, 106, 440 N.E.2d 872, 874 (1982). A reviewing court will not overturn a trial court's ruling on due diligence unless it amounts to a clear abuse of discretion. People v. Hughes, 274 Ill. App. 3d 107, 111, 653 N.E.2d 818, 822 (1995). Whether the State has exercised due diligence is a question which must be determined on a case-by-case basis after careful review of the particular circumstances presented. People v. Brown, 47 Ill. App. 3d 616, 621, 365 N.E.2d 15, 19 (1977). The State bears the burden of proof on the question of due diligence. People v. Smith, 275 Ill. App. 3d 207, 215, 655 N.E.2d 1129, 1136 (1995).
Both parties rely on the case of People v. Battles, 311 Ill. App. 3d 991, 724 N.E.2d 997 (2000). In that case, the State filed a motion to continue trial for an additional 120 days to obtain DNA test results under section 103-5(c). The trial court allowed the motion and entered the ruling without findings.
On appeal, defendant challenged the ruling on the grounds that the State had failed to show due diligence in the procurement of the DNA testing results. The appellate court prescribed three requirements to assess prosecutorial diligence in obtaining test results within the initial speedy trial period: first, the State should provide a full explanation of each and every step taken to complete DNA testing within the 120-day term; second, taken together, these steps must comprise a course of action that a reasonable and prudent person intent upon completing tests within 120 days would follow; and third, the State should explain why those efforts fell short and resulted in an unavoidable delay. Battles, 311 Ill. App. 3d at 998, 724 N.E.2d at 1002.
In Battles, the court found that the State did not meet its burden of showing that it made a serious attempt to complete DNA testing within the 120-day speedy trial term. The court noted that the State took 72 days to decide whether it should even perform DNA testing; sent the sample to the wrong lab; had not yet sent the sample to the correct lab at the time of the hearing; and never followed up with the lab or expedited the testing by placing it on the ASAP list. The court concluded that "[t]he State did not use section 103-5(c) as a refuge from an approaching deadline after a diligent but failed effort to obtain tests in time for use at trial," but as a "vehicle to cure the time problem created by its lack of effort." (Emphasis in original.) Battles, 311 Ill. App. 3d at 1004, 724 N.E.2d at 1007. The court concluded that granting the State's motion for a continuance was an abuse of discretion.
In this case, the State presented different circumstances to the trial court. A blood sample was taken from defendant on July 12, the day he was taken into custody. However, defendant was not charged with criminal sexual assault for the July 11 incident until July 21. The blood sample and evidence collection kit were sent to the crime lab July 27 to determine if DNA was present for testing. Since the State did not know whether the evidence collection kit contained DNA because Aylward had taken a ...