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People v. Silver

October 2, 2007


Appeal from the Circuit Court of Lake County. No. 03-CF-2860. Honorable James K. Booras, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Grometer

Paul Silver appeals the denial of his motion to dismiss indictments charging him with possession of child pornography (720 ILCS 5/11--20.1(a)(6) (West 2002)). He argues that he was denied his constitutional right to a speedy trial (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8) when there was a delay of nearly three years between the indictments and his arrest, he was unaware of the indictments, and law enforcement knew of his location during that time but made no effort to arrest him. We agree that under the circumstances of his case, Silver was denied his right to a speedy trial. Accordingly, we reverse.


In May 2003, Silver's employment in Illinois was terminated after his employer found pornographic material on his work computer. Shortly after, Silver moved to California. On August 6, 2003, Silver was charged by grand jury indictment with six counts of possession of child pornography. An arrest warrant was issued that same day, but it was not served until May 12, 2006, when Silver voluntarily surrendered himself to authorities.

On June 8, 2006, Silver moved to dismiss the charges on federal and state constitutional speedy-trial grounds. Silver alleged that he moved to California in May 2003, had his mail forwarded, surrendered his Illinois driver's license, and obtained a California driver's license. He purchased a home in California and held bank accounts there. He learned of the indictments in 2006 when he sought new employment and the existence of the arrest warrant was revealed in a criminal background check. He then returned to Illinois and surrendered himself to authorities. Silver alleged that the officers investigating the case knew that he had moved to California, yet they failed to attempt to locate him there. He also alleged that a Lake County prosecutor had advised the officers to enter the case information into a computer database, but not to seek extradition. Finally, Silver alleged that there had been mass layoffs at his previous place of employment, making witnesses difficult to find, and that one potential witness had moved to Australia.

In support of the motion, Silver provided a police report confirming that the investigating officers obtained his California address in August 2003. He also provided envelopes showing that his mail was forwarded and that some mail was returned to sender displaying his new address. Silver provided verification that he obtained a California driver's license in 2003. The State stipulated to the exhibits and did not deny the remaining allegations.

At the hearing on the matter, Silver argued that the lack of diligence in bringing him before the court was presumptively prejudicial and required that the charges be dismissed. The State did not offer evidence to dispute Silver's allegations about the availability of witnesses or otherwise seek to show a lack of prejudice to Silver's defense. Instead, the State argued that prejudice could not be presumed and that Silver was required to demonstrate actual prejudice from the delay.

Referencing case law addressing preindictment delays, the trial court denied the motion, stating that the rule was that Silver must show prejudice. The court then stated: "And I don't have to move on to determine reasons for the delay and do a balancing act. Defendant has not shown substantial prejudice. That has not been shown."

Silver moved for reconsideration. At the hearing on the motion, the trial court stated that the delay at issue was not as long as in other cases. The court also indicated that Silver carried some blame for the delay because he perhaps had been anticipating the indictments after his former Illinois employer found pornographic material on his computer. The court also observed that Silver did not earlier assert his right to a speedy trial. On July 26, 2006, the court denied the motion to reconsider.

At a bench trial, Silver stipulated to facts showing that there was child pornography on his work computer, which was in his exclusive control. However, Silver's attorney specifically noted that while Silver was stipulating to what witnesses would say if they testified, he was not agreeing with their conclusions. Without explaining why or providing any specific defense or argument, Silver moved for a directed finding on the basis of insufficient evidence.*fn1 The trial court found Silver guilty, sentenced him to probation with psychiatric evaluation and treatment, and imposed fines. The court denied Silver's motion to reconsider, and he appeals.


Silver contends that the trial court applied the wrong law to his motion to dismiss when it applied cases that involved preindictment delays. Those cases require a showing of actual prejudice before a speedy-trial violation can be found. See, e.g., People v. Lawson, 67 Ill. 2d 449, 458-59 (1977). Silver argues that in his case, where there was a lengthy delay after indictments were issued, prejudice is presumed and the State failed to present evidence to overcome that presumption.

"[T]he ultimate determination of whether a defendant's constitutional speedy-trial right has been violated is subject to de novo review." People v. Crane, 195 Ill. 2d 42, 52 (2001). However, we will uphold the trial court's factual determinations unless they are against the manifest weight of the evidence. Crane, 195 Ill. 2d at 51. Here, the facts are undisputed, and we thus review the matter de novo.

A delay in arresting a defendant after indictments have been issued is addressed under the Sixth Amendment right to a speedy trial. People v. Yaeger, 84 Ill. App. 3d 415, 418 (1980). The United States Supreme Court has identified four factors to be considered when determining whether a defendant's right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right; and (4) the prejudice to the defendant as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed. 2d 101, 117, 92 S.Ct. 2182, 2192 (1972). The Illinois Supreme Court has adopted the same four factors. People v. Bazzell, 68 Ill. 2d 177, 182 (1977). Thus, Silver is ...

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