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People v. Payne

Court of Appeals of Illinois, Second District

March 9, 2015

KENNETH LEE PAYNE, JR., Defendant-Appellant

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Winnebago County. No. 09-CF-3944. Honorable Gary V. Pumilia, Judge, Presiding.

Thomas A. Lilien and Josette Skelnik, both of State Appellate Defender's Office, of Elgin, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Sally A. Swiss, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Zenoff concurred in the judgment and opinion.



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[¶1] Following a jury trial in the circuit court of Winnebago County, defendant, Kenneth Lee Payne, Jr., was found guilty of aggravated vehicular hijacking (720 ILCS 5/18-4(a)(1) (West 2008)) and aggravated battery (720 ILCS 5/12-4(b)(10) (West 2008)). The trial court sentenced defendant to a term of 20 years' imprisonment for aggravated vehicular hijacking and a concurrent 5-year term of imprisonment for aggravated battery. On appeal, defendant raises two distinct issues. First, defendant argues that defense counsel was ineffective for failing to move for the charges against him to be dismissed under the speedy-trial provisions of the Interstate Agreement on Detainers (730 ILCS 5/3-8-9 (West 2008)). Second, defendant argues that he is entitled to a new trial because, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the State used a peremptory challenge to strike a prospective juror on the basis of race. For the reasons that follow, we affirm.


[¶3] On December 17, 2009, defendant was charged with one count of aggravated vehicular hijacking (720 ILCS 5/18-4(a)(1) (West 2008)), one count of aggravated battery of a senior citizen (720 ILCS 5/12-4.6(a) (West 2008)), and one count of aggravated battery (720 ILCS 5/12-4(b)(10) (West 2008)). The charges stemmed from an incident that occurred at a McDonald's restaurant in Rockford on the evening of October 19, 2009.

[¶4] When the indictment was filed, defendant was serving a sentence in the Wisconsin Department of Corrections, based on a parole violation and a charge of possession of a controlled substance in that state. On January 27, 2010, officials from the Wisconsin Department of Corrections authored a letter to the Winnebago County State's Attorney's office. The letter stated that the Wisconsin Department of Corrections had received a " Warrant" in defendant's case and was treating it as a detainer. Attached to the letter were: (1) a written request from defendant dated January 26, 2010, for a final disposition of the untried charges in Illinois; (2) a notice that defendant was imprisoned in the Dodge Correctional Institution in Waupun, Wisconsin; (3) a certificate of his offender status; and (4) an offer to deliver temporary custody of defendant. The letter was sent to the Winnebago County State's Attorney's office by certified mail and received by that office on February 1.[1] The letter also indicated that it was " carbon copied" to the " Winnebago County Clerk of Circuit Court."

[¶5] Defendant's first appearance in Winnebago County was on May 12, 2010. At that time, William Weatherly, an assistant public defender, was appointed to represent defendant. Continuances were agreed to by defense counsel from the date of defendant's first appearance through October 27, 2010. On October 27, 2010, defense counsel announced that defendant

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wished to set his case for trial. The State requested December 6 as the trial date, but defense counsel stated that he was not available on that date. The court then set a trial date of January 3, 2011. The parties agreed that the time between October 27 and December 6, 2010, would be attributed to the State and that the time from December 6, 2010, through January 3, 2011, would be attributed to defendant. On January 3, 2011, defendant filed a motion to suppress identification evidence and a motion to suppress statements. Between January 3, 2011, and April 27, 2011, defense counsel sought and obtained continuances of the trial date. On April 27, 2011, defendant informed the court that he wished to proceed pro se. After admonishing defendant, the court granted defendant's request. The case was then continued on defendant's motion to May 11, 2011.

[¶6] On May 11, 2011, defendant initially indicated that he wanted to " [c]ontinue with [his] 120" (speedy-trial period) and set the case for trial. Defendant stated that he intended to waive a hearing on the motion to suppress identification evidence but that he still wished to pursue the motion to suppress statements. Accordingly, the trial court continued the case to June 14, 2011, on defendant's motion and tolled the time " until after that motion [to suppress statements] is heard." On June 14, the case was continued again to June 28, 2011, due to the trial court's unavailability to hear the motion to suppress statements.

[¶7] On June 28, 2011, defendant informed the court that he wanted to withdraw the motion to suppress statements and " just continue with [his] 120." Upon the State's request, the court set a trial date of July 18, 2011. On July 14, 2011, the State sought a continuance of the trial date to August 15, 2011, due to its failure to serve subpoenas on two out-of-state witnesses and its recent request for DNA testing on some materials that had not yet been examined. The State acknowledged that, if the court granted a continuance, " all the time would be on [the State]." Over defendant's objection, the continuance to August 15 was granted, with a pretrial date of August 11. Also on July 14, the court granted defendant's request for an investigator to speak to a potential witness.

[¶8] On August 11, 2011, the State answered ready for trial. The State indicated that it made " a strategic decision" to continue without the DNA information, explaining, " We don't think it will be depositive [ sic ] one way or the other and don't want to delay the case anymore, and all of our witnesses have been served." However, defendant expressed frustration over his inability to obtain the services of the investigator the court had referred to him. Defendant stated that he wanted counsel reappointed, but he requested someone other than the public defender, remarking that he had fired Weatherly because " he wasn't doing anything I'm sayin'." The court reappointed the public defender's office, and Assistant Public Defender Edward Light was assigned to the case.[2] Upon defendant's motion, the case was taken off the trial call and continued until September 14, 2011, for status. The State then indicated that, " as long as [it has] time," it was going to " go ahead and have the DNA."

[¶9] Thereafter, the case was continued several times on defendant's motion. On January 13, 2012, defense counsel indicated that he needed some time to speak with defendant regarding the results of a Rule 402 conference (see Ill. S.Ct. R. 402 (eff. July 1, 1997)) but said that he was also requesting that a trial date be set. By

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agreement of the parties, a trial date of March 26, 2012, was set, with a final pretrial date of March 22.

[¶10] On March 22, 2012, the State announced that it was ready for trial. However, the State then indicated that it was not certain whether materials relating to the DNA analysis that were discoverable pursuant to Illinois Supreme Court Rule 417 (eff. Mar. 1, 2001) had been turned over. The parties also discussed whether the current trial date was " within the 120" and whether a continuance would put the case outside the speedy-trial period. Defendant expressed his belief that the case was " beyond 120 days." The court left the trial date of March 26, 2012, unchanged.

[¶11] On March 26, 2012, both sides answered ready for trial. The State related, however, that since the date of the pretrial the prior week, it had learned that the Rule 417 materials had not been turned over to the defense. In addition, the State had learned that its fingerprint expert had located additional prints that the expert wanted to examine, but that this would delay the expert's report. Defense counsel stated that, because the Rule 417 materials were discoverable and should have been provided to the defense, the court should exclude any DNA evidence as well as the proposed new fingerprint evidence. The trial court found that it would be unfair for the State to continue to test materials and turn over the information during the course of the trial. The State said that it would then make an oral motion for a one-day continuance to give defense counsel time to absorb the Rule 417 materials.

[¶12] The parties then discussed what dates were attributable to the State for speedy-trial purposes. The State represented that it was " still well within [its] 120." Defense counsel responded that there were two time periods at issue, the 120-day speedy-trial term (see 725 ILCS 5/103-5 (West 2008)) and the 180-day term under the Interstate Agreement on Detainers (see 730 ILCS 5/3-8-9 (West 2008)). Defense counsel noted that in January 2010 defendant, while incarcerated in Wisconsin, had caused a request for the disposition of his case to be sent to Winnebago County and had been brought to Winnebago County on May 11, 2010. Defense counsel agreed that the State was within the 120-day speedy-trial term. The court stated that it was inclined to grant a one-week continuance but would attribute that time to the State due to the late disclosure. The case was then continued to April 2, 2012, for trial.

[¶13] Jury selection commenced on April 2, 2012, with the trial court announcing that the parties would select jurors by questioning panels of six. After the State questioned the first panel of six, consisting of two women and four men, it excused venirepersons Deidre Tillman, an African-American female, and Jennifer Juliano, a white female. Defense counsel objected to the exclusion of the women as based on race and gender grounds, citing Batson. The State responded that both Tillman and Juliano " have criminal convictions." After excusing the venire from the courtroom, the parties presented further argument. At the close of this argument, the trial judge overruled the Batson objection to the State's peremptory strikes, finding that the State's reason for excusing Tillman and Juliano was " race neutral and gender neutral." Six jurors were selected on April 2, with the remaining six and the alternates selected on April 3. After both the jury and the alternates were selected, defense counsel renewed his Batson objection. Following additional argument by the parties, the trial court again overruled the Batson objection.

[¶14] The matter then proceeded to trial. At the close of the trial, the jury returned verdicts finding defendant guilty of aggravated

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vehicular hijacking and aggravated battery. On April 20, 2012, defendant filed a motion for a new trial. On May 22, 2012, defendant filed a supplemental motion raising a Batson claim. A hearing was held on the motions on July 6, 2012. With respect to the Batson claim, defense counsel noted that he had objected to the State's use of peremptory challenges with respect to Tillman and Juliano and that defendant, an African-American, had ended up with a jury of 12 white persons. Defense counsel argued that the State did not provide a race- or gender-neutral reason for excusing either of these members of the venire where their backgrounds and answers to questions did not distinguish them from jurors who were selected. The State responded that its notes were " sketchy" as to the reasons why it struck the two potential jurors in question, but, it said, with respect to Tillman, there was no pattern of racial discrimination where Tillman was the first potential juror struck. The State added that the majority of the jurors selected were female, so gender bias had not been shown. The court denied both motions.

[¶15] At a hearing held on July 27, 2012, the parties agreed that defendant should be given credit against his Illinois sentence for the period from January 26, 2010, the date the detainer was entered, to July 26, 2012, a total of 911 days. After hearing argument from both sides, the court sentenced defendant to a term of 20 years' imprisonment for aggravated vehicular hijacking and a concurrent 5-year term for aggravated battery. ...

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