Appeal from the Circuit Court of Cook County 96 CR 10552-2 Honorable Edwin A. Gausselin, Trial Judge Presiding Honorable Paul Nealis, Sentencing Judge
The opinion of the court was delivered by: Justice Tully
Defendant, Doiakah Gray, was charged with first degree murder and armed robbery. After a jury trial before the Honorable Edwin A. Gausselin, he was found guilty of first degree murder but was acquitted of armed robbery. The defendant's case was then transferred, and the Honorable Paul Nealis sentenced the defendant to 80 years in the Illinois Department of Corrections. The defendant appeals raising the following issues: (1) whether the trial court erred in granting the State's motion to extend the time to commence trial; (2) whether the trial court erred in ruling that the State's use of peremptory challenges to dismiss four African-American potential jurors from the venire was race-neutral; and (3) whether the trial court abused its discretion in sentencing the defendant to an extended-term sentence of 80 years.
Defendant does not challenge the sufficiency of the evidence of his guilt, nor does he contend that the jury's conclusion that he was guilty was against the manifest weight of the evidence. Accordingly, we will set out only the facts relevant to the issues raised in this appeal. For context, we note that the following facts were presented in the State's case in chief. On December 2, 1994, Don Rietveld and Gary Bilbrey were at a bar in Harvey, Illinois. Rietveld had a cellular phone. The defendant and Troy Montgomery were also at the bar. The defendant wanted Rietveld's cell phone so he told Rietveld and Bilbrey that he could find women for them and the four men left the bar together and drove off in Rietveld's truck. After making a stop at a liquor store, they continued driving until the defendant directed Rietveld to stop the truck at 163RD Street and Honore. The defendant then used Rietveld's cell phone purportedly to call some women. Instead, the defendant jumped out of the truck and ran with the phone. Montgomery also jumped out of the truck and ran approximately one block to his house. Rietveld got out of the truck and chased after the defendant. Montgomery watched from his garage and saw Rietveld confront the defendant and another man, Tommy Smith. Montgomery saw Tommy Smith shoot Rietveld once in the head and he saw Rietveld fall to the ground. Montgomery then watched as the defendant walked over to Rietveld and shot him three times in the head as he lay motionless on the ground. Rietveld was taken to South Suburban Hospital, where he died the following day of multiple gunshot wounds to the head.
The defendant was arrested for first degree murder on March 8, 1996. He was arraigned on April 30, 1996, and remained in custody for the next 18 months as numerous continuances were agreed to between the State and the defendant. Trial was set for November 17, 1997. *fn1 On November 17, the State was unable to proceed with trial and requested a continuance because several witnesses were not present in court. The defendant was ready for trial. The case was continued to December 1, 1997, but the State's eyewitness, Troy Montgomery, was not present in court. The matter was continued until January 12, 1998, when the State informed the court that Montgomery was again not present in court. The prosecutor stated that he had sent Montgomery a subpoena by mail but that Montgomery had not been personally served. The State requested a warrant against Montgomery be issued but the court denied the request. The case was continued to February 9, 1998, and Montgomery again failed to appear. The State presented a motion for a rule to show cause and the court continued the cause until February 10 for a hearing on the rule. On February 17, 1998, the State filed a motion for a continuance. The court allowed the defendant to file a response to the State's motion and a due diligence hearing was held on February 19, 1998. The trial judge found that the State demonstrated due diligence in its efforts to locate the witness. Accordingly, the judge granted the State's motion for a continuance. Subsequently, the witness was located and trial began on April 14, 1998.
The first issue raised on appeal is whether the trial court abused its discretion in granting the State's motion for a continuance and extending the 120-day speedy-trial term. The defendant contends that the State failed to act with due diligence in locating Troy Montgomery. Specifically, defendant argues that the State did not make an attempt to locate Montgomery until 20 days after the trial date and that the State did not serve Montgomery with a subpoena until months after the trial date. Defendant maintains that the trial court erred and denied his right to a speedy trial. We disagree.
Persons in custody in this State shall be tried 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 1996). The standard for continuing the case upon the State's motion is set forth in the statute:
"(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days." 725 ILCS 5/103-5(c) (West 1996).
The decision whether to grant an extension under this statute is within the trial court's discretion, which will not be disturbed absent a clear showing of abuse. People v. Terry, 312 Ill. App. 3d 984, 990, 728 N.E.2d 669 (2000); People v. Smith, 268 Ill. App. 3d 1008, 1012, 645 N.E.2d 384 (1994). On review, the court should examine the entire record as it existed at the time the trial court considered the motion for continuance. Terry, 312 Ill. App. 3d at 990.
The test of due diligence is whether the State commenced its efforts to locate the witness in sufficient time to secure his presence before the speedy trial term expired. Smith, 268 Ill. App. 3d at 1013. Here, nothing in the record indicates that the State had reason to believe Montgomery would fail to be present on the scheduled trial date of November 17, 1997. *fn2 After that date, the record shows that the State made sufficient efforts to locate Montgomery and secure his presence at trial. Between December 1997 and February 1998, two State's Attorney office investigators made 16 attempts to locate Montgomery at his home. They interviewed neighbors and family members and obtained information about Montgomery's employment and criminal history. During this same time period, three Markham police officers visited Montgomery's home on six occasions and spoke to Montgomery's mother. The Illinois State Police also sent two investigators to Montgomery's home and they placed Montgomery's home under surveillance for a two-week period in January and February of 1998. The State also requested a warrant to arrest Montgomery, sent Montgomery a trial subpoena, and petitioned the court for a rule to show cause why Montgomery should not be held in contempt. Finally, the State made its application for a continuance within the speedy-trial term.
Accordingly, we conclude that the granting of an extension was not an abuse of discretion and that the defendant was not ...