*1 347 (2003), the 2d 203 Ill. 257 (2002), grounds, 402, 405 vacated on other of the the review disputed, if facts are not the majority contends that of this application The be de novo. decision should circuit court’s the trial give is to standard incorrect. The established standard is questions regard- weighing analyzing broad discretion when court of discre- an abuse to stand absent ing and to allow decision venue 250, Co., Ill. 102 2d v. Harvester Stambaugh See International tion. Central Il- 1011, (1984); also Southern & 261, 1016 see 464 N.E.2d 1116, at 772 Council, App. Ill. 3d N.E.2d 331 linois Laborers District standard). application accept Reichert The (declining at 983 ap- the role standard is consistent with an abuse-of-discretion the circuit objective, by rational decision court to ensure an pellate original for of the court. judgment its substituting court while not Council, Ill. 3d App. 331 & Central Illinois Laborers’ District Southern 1116, 983; Niepotter v. Central Illinois Public Service at 772 N.E.2d at (1999). 1278, 632, 636, The Co., App. 303 Ill. 3d 707 N.E.2d allowing decision without majority supplants the circuit court’s court discretion it is due. underlying
I, therefore, dissent. respectfully ILLINOIS, Plaintiff-Appellee, THE OF v. THE PEOPLE OF STATE O’QUINN, Defendant-Appellant. CHESTER Fifth 5 - 01-0666 District No. May
Opinion filed 2003.
KUEHN, J., dissenting. Zalisko, Daniel M. Kirwan Appellate and Michelle A. of both State Office, Vernon, Defender’s of Mt. appellant. for (Norbert Haine, Attorney, William Goetten, State’s of Edwardsville J. Ste- Norris, phen E. Peterson, and Kendra all Attorneys Appellate S. of State’s Office, counsel), Prosecutor’s of People. for the JUSTICE DONOVAN delivered opinion the of the cоurt: Following jury defendant, a trial County, in Madison the Chester O’Quinn (defendant), found guilty first-degree was of murder and sentenced to an years’ extended term of 70 imprisonment. appeal On (1) court, to this defendant argues that he was denied the effective as- sistance and a speedy counsel trial when defense counsel continued (2) for years, his trial more than right he was denied his to a fair 3V2 (3) trial the courtroom, when circuit court removed him from the special of a interrogatory use to determine age the victim’s constituted a violation of prohibition against laws, the constitutional ex post facto (4) he was a repeatedly denied fair trial when he complained that providing adequate defense counsel not and representation court did not make a sufficient into or inquiry ap- defendant’s claims point new to him on represent hearing posttrial counsel at the mo- (5) tion, and he was denied effective assistance of counsel when counsel filed a motion pro to reduce sentence on the day same forma the sentence was For imposed. following reasons, we affirm.
BACKGROUND 31, 1997, On October the State filed an information charging defendant with one count of for first-degree murder the death of 13- month-old Emmarld filed Bradley. speedy Defendant a demand for 5, 1997, 13, trial on November on November he was indicted first-degree years, for three counts murder. Over the next 31/2 defendant’s trial was continued as a result of counsel’s mo defense April 2, tions to 2001. The continue. Defendant’s case went trial on jury guilty 6, 2001, April deliberating returned its verdict on after for less than two hours. *4 trial,
During presented the course of the the State a detailed up 28, to on leading circumstantial case Emmarld’s death October 19, Her was September 1997. Emmarld was born on 1996. mother Larry Bradley. her After Twuna Jackson and father was Emmarld’s
351 in the met defendant sum- birth, Larry separated. and Twuna Twuna moved into an 1997, and defendant August of Twuna mer of 1997. In Twuna and in the with Residing apartment apartment in Wood River. old, children, Kiera, years 3 and Em- two Twuna’s defendant were Adontay, years old. old, son 7 marld, 11 months and defendant’s 1997, of August to healthy, thriving prior a child Emmarld was Ali- sister, Dr. she, her moved in with defendant. her and mother when visit, or office pediatrician. Emmarld’s first Nash Emmarld’s son was 29, 1996, July her on 18, October and last was checkup, place took on for each of by was seen doctor During period, 1997. this Emmarld months, months, four place two “well-baby” checkups, which took her birth, interim her and for several months, and nine months after six her diaper for ear and rash. On last visit doctor an infection visits any problems not other than a rash that she believed was did find body to in bath. Emmarld’s soap related used Emmarld’s bubble marks, bruises, of any did not indication or burns. show Texas, in Harvey, lives grandmother, Roxanne Emmarld’s maternal during to Illinois to for Emmarld and her sister but she returned care 1997, the apart- the first allow Twuna to mоve into August week of to Harvey ment River and the children Wood with defendant. Ms. Florissant, Harvey Ms. stayed her mother in described with Missouri. everywhere smiling wanting Emmarld and a lot to be giggling as and any marks, to not big that her sister be. Emmarld did have wanted bruises, her Harvey family or burns. returned from Texas to visit Ms. during the October 24 to 26. Emmarld thinner. She weekend of was eyes Her and a couple was solemn. were dark sunken. She had bruises on her cheeks and a faint bruise on her forehead. 27, p.m.-to-ll
On October was to work the 5:30 Twuna scheduled job Charles, She for p.m. shift at her in St. Missouri. left work at work, p.m. leaving baby daughter. Prior to for on her Em- she checked eyes her mother lying opened marld her bed. She her when was sleep. to Emmarld’s kissed her and then closed them and went back not and had no marks on her neck. Twuna forehead was bruised she abusing daughter. denied ever her physically police department At on the Wood River p.m. 4:59 October breathing. not Officer regarding received a 9-1-1 call a child was at 5 apartment Otis arrived at the door defendant’s Steward front wearing a lying Emmarld was on her back on a bed. She was p.m. labored, a bruise on her diaper. breathing large Her was she had forehead, forming knot on her forehead. Officer purplish was waiting rode with her Steward carried Emmarld ambulance and which a short distance Township Hospital, only to Wood River away.
Officer spoke Steward with at the hospital. defendant Defendant told him that he up woke Emmarld. held He her hand and walked kitchen, with her into the where fell lay she and on the He floor. went into get Adontay the other room to and Hiera for supper. When he kitchen, walked back into the Emmarld still lying was facedown on floor, the kitchen thought and he she sleeping. was When picked he her up, he noticed she was breathing. not He tried to “give her breaths” and Adontay then told to call 9-1-1. Township
Emmarld arrived at Wood River Hospital p.m. at 5:10 touch, totally unresponsive She was pain, light. emergency to and The physician attempted room to arrangements stabilize her and made to have her transferred to in hospital a children’s St. Louis. p.m. At 6:46 by Emmarld was taken to helicopter Cardinal Glennon Children’s (hereinafter Glennon). in Hospital St. Louis referred to as Cardinal Anthony Dr. Scalzo treated Emmarld at Cardinal Glennon. Dr. Scalzo is board in pediatrics certified and in pediatric emergency medicine. He bruising observed extensive on her shape forehead in the of overlapping rough two A CAT multiple pockets circles. scan showed brain, of in the bleeding part front of the which anatomically injuries, close to forehead bleeding and in the center of brain, the diagnosed which was hemorrhage. neurological as a subarachnoid The Emmarld exam indicated that did any was brain dead. She not have eyes. light reaction to in her had did gag She no reflex and she not respond any to stimulus. Further tests indicated she had no flow of brain, within diagnosis. blood the which confirmed the brain death Dr. that by multiple Scalzo testified the condition was caused nonacciden- shearing tal syndrome. forces consistent with shaken infant He that the bruising believed the forehead and the on hemorrhages the fresh, stated, brain were and “A with injury he child extent this of go instantaneously would probably [within] unconscious or minutes at very the most.” Bradley Davitt, pediatric
Dr. opthamologist, examined Emmarld on October 28 at 8:35 a.m. He found that Emmarld’s retina each eye eye multiple from lay- was detached the wall and that there were hemorrhage eye. diagnosed ers of in each the as He cause nonacciden- trauma, tal or abuse. a.m. pronounced approximately
Emmarld was dead at 11:30 on by p.m. 28. At 12 Dr. James Monteleone. October she was examined pediatrics Dr. at St. professor gynecology Monteleone was a of and and of the University Louis School of Medicine the director division child at an examination of Em- protection Cardinal Glennon. After records, marld, subsequent autopsy the the he report, medical and child injury determined the that caused her death was severe that He testified impact. with baby syndrome shaken consistent with abuse injury. of her minutes within incapacitated been have that she would the linear that opinion to his addition, testified In Dr. Monteleone twisting pulling with сonsistent Emmarld’s neck was mark across ap- arm on her left the marks clothing and that neck a child’s inflicted been that had healing burn of a pattern to be a peared of a each side bruising on opined the doctor intentionally. Finally, person grabbing awith the cheek is consistent mouth or on child’s with consistent testimony is This squeezing. mouth and by child seen bruising had she Harvey regarding testimony of Roxanne Emmarld’s before cheeks the weekend of Emmarld’s on both sides death. anatomic, clinical, and Nanduri, is board certified Raj
Dr. who her Emmarld. It was on autopsy conducted the pathology, forensic vigor- injury by caused a closed head Emmarld died from opinion that *6 baby referred to as shaken head, clinically is shaking of the which ous hemorrhages, which the retinal consistent with syndrome. This was microscopic examination. through and a grossly she observed any evidence. present The did not defense
ANALYSIS
Trial Issues
Speedy
denied his
that he was
argues
appeal
Defendant
first
on
a
of counsel and to
the
assistance
rights
constitutional
to
effective
than
his trial for more
defense counsel continued
speedy trial when
and over defendant’s
defendant’s authorization
years without
31/2
express objection.
and the Illinois
Both the
States Constitution
United
to a
right
of a crime the
anyone
to
accused
guarantee
Constitution
(“[i]n
Const.,
prosecutions,
all criminal
amend. VI
speedy trial. U.S.
trial”); Ill.
public
a
and
enjoy
right
speedy
the
to
the accused shall
(“[i]n
shall
the accused
1970,
I,
prosecutions,
§
art.
8
criminal
Const.
***
impartial jury”).
by
a
trial
an
right
speedy public
the
to have
have
and, like
trial is fundamental
right
speedy
to a
The sixth amendment
the
by
the states
applicable to
rights,
amendment
is made
other sixth
v.
Klopfer
See
North
of the fourteenth amendment.
process
due
clause
(1967).
analysis
An
213,
1,
is more
whether the defendant asserted his right to a
(4)
speedy
course,
trial in due
prejudice,
if any, suffered by the
defendant as a
delay. Barker,
result of the
530,
407 U.S. at
33 L. Ed.
116-17,
2d at
At issue here
3V2-year period
is a
31, 1997,
from October
date the State filed an information charging defendant with first-
degree murder,
2,
April
2001,
to
the start of the
record,
trial. From the
it is noted that defense counsel requested multiple continuances over
the SVs-year period. The circuit court approved a minimum of 28
separate orders of
Generally,
continuance.
recognize
courts
that a
delay
year
of one
“presumptively
Crane,
is
prejudicial.”
Turning to the
prong,
second
we note that
the burden to
provide justifiable
reason for the delay
State,
rests with the
and the
defendant need only
delay
show that the
was not attributable to his
*7
People Prince,
actions.
v.
242 App.
1003, 1009,
Ill.
3d
105,
611 N.E.2d
(1993);
Belcher,
109
People
202,
v.
186 Ill. App. 3d
“Delay is not an uncommon defense tactic. As the time between the lengthens, may commission of the crime and trial witnesses may become unavailable or their If memories fade. the witnesses support prosecution, weakened, the its case will be sometimes seri- ously prosecution so. And it is the which the of carries burden
355 right he free from or the to Thus, right the to counsel proof. unlike speedy self-incrimination, right of the to deprivation compelled ability to defend accused’s per prejudice the trial does not se 111-12, S. Ct. 521, 2d at Barker, at 33 L. Ed. 407 U.S. himself.” at 2187. plea negotia- a from the State able to extract
Defense counsel was On the defendant. favorable to the hindsight quite in tion that as fol- State’s offer trial, explained the the defense counsel morning of presence: in defendant’s lows to the court time Yes, Honor.At this Your [defensecounsel]:
“MR. HAWKINS
made an of-
that the State has
make a record in this case
we would
degree[-]murder,
plea
charge
to the
of second
in this case of a
fer
Corrections,
charge
to reduce the
years
Department
in the
ten
that,
credit for time served.
from
with
*** myself, Mr. Re-
by
the defendant has been advised
That
of success in this
kowski[,]
] that the likelihood
Simmons[
and Mr.
And it is his
very good, and he should take the offer.
case is not
I
reject
proceed
and
to trial.
at this time to
the offer
desire
And
just
put
like
that on the record.”
would
to
may
is unknown. It
well
Why the State chose to make the offer
delay
bringing
the
defendant
have been that the State believed that
prosecution.
chances of a successful
negatively
to trial
affected its
attorney’s actions. In
by
a defendant is bound
his
Additionally,
131,
(1990), the court
Bowman, 138 Ill. 2d
“The rule Illinois is that client is rule, it lawyer-agent. not an ironclad is omissions of his While system litigation to func- necessary representative in order for a attorney proceedings, In criminal an is authorized [Citation.] tion. and procedural act for and determine for him matters to his client Thus, involving strategy [Citations.] and tactics. decisions trial from separated of a counsel cannot be affirmative acts defendant’s Bowman, 141, 2d at 561 N.E.2d the defendant’s own 138 Ill. acts.” at 638. (2000). 521, Hall, 305, 328, v. 194 Ill. 2d 743 N.E.2d People
See caused all that defense counsel clearly The record establishes to therefore, delay must be attributed pretrial delay, this of Barker. prong defendant failed to meet Consequently, defendant. speedy to a trial. As Next, right his clearly defendant asserted counsel, made a record, defendant, first by through evidenced 1998, Then, 18, on March speedy request trial on November 1997. drop the court to requesting defendant sent a letter to the court not authorized defense counsel charges, arguing that he had by defense any continue and that continuances obtained his case *8 356
counsel were obtained permission. without his years later, Almost 2Va July 12, 2000, on defendant pro sent the court a se motion to dismiss. The argued motion that attorney his was ineffective and that his case should be reasons, dismissed for several including the fact that defense counsel had consent, continued the case without defendant’s thereby violating right his to a speedy trial.
Finally, defendant cannot meet the
prong
last
of Barker —that
prejudice resulted.
In assessing prejudice
accused,
to the
the court
must consider the
sought
interests
protected by
to be
the speedy trial
(1)
(2)
right:
the prevention of oppressive pretrial
incarceration,
the
(3)
minimization
anxiety
of the
accused,
and concern of the
the
limitation of the possibility that the
impaired. Barker,
defense will be
532,
407
118,
U.S. at
Although argued it can be that spent lengthy defendant amount of in prison, time in resulting unnecessary anxiety and concern, defendant cannot length show that this of time caused his defense to be impaired. Defendant prejudice claims that is demon by strated the fact that one of the call, witnesses he wanted to his wife, еstranged had by died the time he finally brought was to trial. note, us, We based on the record before that defense had counsel investigated possibility calling the of the wife and had decided that her testimony would not have been useful even if she had been an avail able witness and instead could have served to hurt defendant’s case. point by This is further filing defense counsel’s of a evidenced motion in limine to exclude evidence that investigated defendant had been for abusing his filing, wife’s children. Based on this defense counsel’s statements, living and the fact that he was another woman when with occurred, the murder prejudiced we conclude that defendant not was by being unable to call his estranged wife as a witness.
Defendant attempts argue also that because counsel failed to subpoena records, medical and telephone may this evidence have been destroyed by lost or the time of the explana- trial. Defendant offers no tion of how this helped would have his defense and is therefore unable showing to make the prejudice required by prong of this of Barker. After an examination of the record and after a consideration of Barker, each factor in identified we find that defendant was not denied right speedy By finding his constitutional to a trial. this we do not case, promote delay wish to the of in this but we do type that occurred believe, case, delay not undеr the circumstances of this the in result would violation which a constitutional the level of reaches has right the indictment when dismissal of the remedy “severe the 112, S. Ct. Ed. 2d at Barker, 33 L. 407 U.S. at deprived.” been at 2188. case contained this chronology of the continuances
The detailed
presentation
fact that
change
not
the dissent does
by the defense. Neither
by
delay
caused
prejudiced
defense
not
only one of the
decision on
nor the dissent can base its
majority
*9
emphasis
placed
cannot be
say
to
that more
Barker factors. This is not
of the case
on the circumstances
the other based
on one factor over
remedy in this case
trial court. The
remedy
and the
available to the
trial.
granting of a new
of evidence or the
suppression
cannot be the
not
is
charge,
of the murder
which
Rather,
only
it can
be the dismissal
112,
522,
L. Ed. 2d at
Barker,
Defendant also asserts
was
for
requests
multitude of
trial counsel based on defense counsel’s
of
counsel,
on a claim of ineffective assistance
continuances. To succeed
v.
set forth in Strickland
satisfy
two-part
a defendant
test
must
(1984).
668,
674,
2d
defendant was not denied the effective assistance of counsel stemming delay from the of the trial.
Right to Be Present at Trial
argues
Defendant next
on appeal that he
right
was denied his
to a fair
judge
trial when the
him
removed
from the courtroom.
Defendant believes that the judge should have admоnished him first
that he would be removed if he did not behave and
judge
that the
should also have offered him the opportunity to return to the
courtroom if his behavior improved.
right
present
The
to be
not an
is
express right under the United
Constitution,
rather,
States
but
it is
implied, arising from the due process clause of the fourteenth amend
Const.,
Xiy
I,
§
ment. U.S.
amend.
8,
1. Article
section
of the Illinois
grants
Constitution
criminal defendants the express right
appear
“to
person
by
1970,
I,
and defend in
and
§
counsel.” Ill. Const.
art.
8. Ac
cordingly, both the federal constitution and our state constitution af
ford criminal
general right
defendants the
present
only
to be
not
at
the trial but at all
stages
proceedings.
Allen,
critical
of the
Illinois v.
337, 338,
353, 356,
1057,
(1970);
397 U.S.
25 L. Ed. 2d
90 S. Ct.
1058
(1998).
Bull,
179, 201,
People
824,
v.
185 Ill. 2d
705 N.E.2d
835
A
defendant’s
process right
presence
due
under the fourteenth amend
violated, however,
ment is
only in the limited circumstance when his
just
absence results
the denial of a fair
People Bean,
trial.
v.
65, 83,
(1990);
137 Ill. 2d
People
N.E.2d
see also
v. Lof
*10
ton,
40, 67,
782,
(2000); Bull,
194 Ill. 2d
740 N.E.2d
797
“Mr.
go
you
order
[sic]
the Court
It is
more in this courtroom.
County Jail.
Madison
back to the
transported
you be
back[
]that—
of
because
arguments of counsel
closing
not be here for
You will
the courtroom.
coming into
jurors
you attacked some
the fact that
you
jurors, but
will
those
going
question
to have to
The Court is
him back.”
closing argument. Take
during
present
not be
during
present
He was
just
a fair and
trial.
not denied
Defendant was
He was
of evidence.
during
presentation
the
dire and at all times
voir
closing arguments.
just prior to
courtroom until
not removed from the
adequately
defense counsel
record reflects that
Additionally,
the
Defendant
arguments.
during closing
interests
represented defendant’s
be
right
his
to
that he was denied
showing
no evidence
presented
has
trial.
resulting in аn unfair
during the trial
present
Interrogatory
Special
interrogatory
a
to
argues
special
that the use of
Defendant next
process
him of due
violated
age deprived
determine the victim’s
application of
powers
post
of
and ex
separation
the doctrines of
facto
author
legislative
there
no valid
laws. The dissent contends that
was
defendant com
an extended-term sentence at the time
ity
impose
to
behavior and that
the
composed
mitted
his criminal
the acts which
(Apprendi
issue
v. New
legislation passed
Apprendi
to address the
(2000)) could
435,
of the Unified Code 5/5 — 360
1996)), as it existed crime, on the date of unconstitutional, was Apprendi based on v. Jersey, 466, New 530 435, U.S. L. 147 Ed. 2d 120 (2000), S. Ct. 2348 because the statute require fails to proof of the age beyond victim’s a reasonable doubt. The answer is that the statute was not and is not fact, unconstitutional if the finder of in this case the jury, is required to determine aggravating beyond factor a reasonable doubt. This conclusion Thurow, is based on v. People 203 (2003). Ill. 2d 365-66 3(a) The defendant in charged, Thurow was under sections 9 —
(f) (720 (f) (West of the Criminal Code of 3(a), 1998)), ILCS 5/9 — with involuntary manslaughter family of a or household member. Thu- row was found guilty after the jury was instructed on the elements of involuntary manslaughter. The sentencing judge determined that Thu- row eligible for an enhanced sentence because the victim was a (720 3(f) (West 1998)). member of Thurow’s household ILCS 5/9 — Alternatively, the sentencing judge determined that Thurow was eligible for an extended-term upon sentence based the young age of (730 5—3.2(b)(4)(i)(West 1998)). the victim ILCS result, As a 5/5 v trial court years sentenced Thurow to 8 in prison, a sentence within (720 both the 3- 14-year range for an enhanced sentence ILCS 5/9— 3(f) (West 1998)) and the 10-year 5- to range for an extended-term (730 8—2(a)(5)(West 1998)). sentence ILCS The appellate court 5/5 — sentence, vacated the on the basis that it violated Apprendi, and remanded for a nеw sentence not to five-year exceed the statutory maximum for the Class 3 felony simple involuntary manslaughter. The Illinois Supreme Court affirmed the appellate court’s judgment that Thurow’s enhanced error, sentence was in imposed reversed the appellate vacating court’s order remanding sentence and for a new sentencing hearing, and affirmed the eight-year by sentence imposed the trial court. part analysis Thurow,
As a its the court found that section 3(f) was constitutional and was not void ab The initio. court stated: 9 —
“There evidentiary is no indication here as to the standard that applied making is to be the household-member determination. 3(f), finding by Under section preponder this could be made a 9 — However, ance of the evidence. it also could made upon be based proof beyond a Apprendi, reasonable doubt. Under a finding, based upon preponderance evidence, of the that the victim awas member of defendant’s household could not form the basis for an noted, enhanced sentence. As a procedure such would be unconsti However, tutional. there if is no violation this determination is beyond latter, made a reasonable doubt. Because this constitution *12 3(f), be it cannot by section allowed procedure is ally correct 9 — the statute which under no set of circumstances there is said that [(1994)]. [200,] 210-11 C.E., Ill. 2d 161 See In re be valid. would 3(f) Accordingly, we face. on its unconstitutional is not Section 9 — 3(f) initio.” is void ab that section contention reject defendant’s 9 — at 368. Thurow, 203 Ill. 2d 5—3.2(b)(4)(i) be that section require not does
Apprendi
5 —
proof
applied
of
is
standard
if the correct
unconstitutional
considered
following
the
states
Apprendi
factors.
aggravating
the
determining
in
that
conviction, any fact
prior
the fact of a
“Other than
proposition:
statutory
beyond
prescribed
the
for a crime
penalty
increases the
a reason
beyond
jury[
proved
]
to a
and
must be submitted
maximum
455,
S.
2d at
120
490,
L. Ed.
Additionally, defendant of the law application ex against post prohibition violated the facto argues at trial.” Defendant of the offense “by adding an element from legislature prohibits the prohibition post because the ex facto increasing punish- or altering the definition of crime retroactively 362 act,
ment for a criminal his case should governed have been by the law in effect at the time of the offense.
As a Apprendi, result of legislature Illinois amended the extended-term sentencing 953, statute. Pub. Act 23, eff. February 91 — 8—2(a) (West (amending 2001 730 ILCS 1998)); People see v. 5/5 — Swift, 378, n.l, 202 Ill. 2d n.2, 386 292, n.1, 387 781 N.E.2d (2002). n.2 The section now states that where a “trier of fact” finds “beyond a reasonable presence doubt” the of one оf the ag factors in gravation set forth in section 5—3.2(b), the judge may sentence the 5 — (West 8—2(a) 2000). defendant to an extended term. 730 ILCS 5/5 — This amendment became 23, 2001, effective February almost two prior months to defendant’s trial in April 2001.
Section 111 — 3 of the Code of
1963,
Criminal Procedure of
regard
ing
required
form
charges,
of criminal
was also amended at the
5,
same time.
Act
§
Pub.
February 23,
eff.
2001 (amending
91 —
(West 1998)).
725 ILCS
The section
requires
now
5/111 — 3
*13
provide
State shall
written notice
fact,
whenever a
other than a prior
conviction, which is not an element of the offense will be used to seek
(West 2000).
an increased range
penalties.
of
725 ILCS
The
5/111—3
State strictly complied with the written notice requirement by filing a
notice to defendant before the trial of the State’s intent
to seek an
extended-term sentence based
being
on Emmarld
under
age
the
of 12.
An
post
ex
law is one that
retrospective,
is
affects
facto
rights,
substantial
and disadvantages
Florida,
the defendant. Miller v.
423,
(1987).
430,
351, 360,
482 U.S.
2446,
96 L. Ed. 2d
107 S. Ct.
2451
A law is considered ex
if
post
it is both retroactive and more
facto
onerous than the
in
law effect at the time of the offense. Weaver v.
Graham,
24, 30-31,
450 U.S.
17, 24,
960,
67 L. Ed. 2d
101 S. Ct.
965
(1981).
not,
A
however,
defendant does
right”
have a “vested
in the
procedure
modes of
at
Miller,
430,
used
his trial.
363
any
or make
offense
previously
for a
committed
punishment
the
only change
The
of murder.
of the offense
changes to the elements
the
existence of
determine the
finder of fact must
made is that the
doubt,
thereby
a reasonable
beyond
factor
aggravating
relevant
not
The amendments do
the State.
required
the burden
of
increasing
States Constitu
either the United
provision of
post
violate the ex
facto
(Ill.
10)
(U.S.
Const.
Constitution
Const.,
I, §
or the Illinois
art.
tion
16).
537,
at 497.
Felella,
2d at
546 N.E.2d
1970,
I, §
See
131 Ill.
art.
this court should reverse
alternatively argues that
Defendant
to be
interrogatories
provide
special
did not
for
legislature
because the
trial, relying
the
phase
the
given
jury during
guilt-innocence
to the
interrogatories are not favored
special
on the fact that
specifically
885,
App.
303 Ill.
3d
708 N.E.2d
People Ruppel,
the law. See
v.
argues
Defendant
Testin,
224,
Although
legislature
specifically
did not
also did not
interrogatories
guilt phase,
legislature
at the
special
sentencing proceeding
penalty
a
similar to death
provide for bifurcated
1(d) (West 2000). Moreover, the use of
proceedings. See 720 ILCS 5/9 —
court, and
left to the discretion of the
nonpattern
a
instruction is
authority
trial court the
specifically gives
Court Rule 451
Supreme
no
instructions exist that
nonpattern
pattern
to use
instructions when
give
The decision whether to
correctly state the law. 177 Ill. 2d R. 451.
discretion of the
nonpattern
instruction rests within
sound
on review
an abuse
circuit court and should not be overturned
absent
Testin,
Ill.
3d at
CONCLUSION For the reasons, aforementioned affirm judgment we the of the circuit court of County. Madison
Affirmed.
HOPKINS, P.J., concurs. KUEHN, dissenting:
JUSTICE I respectfully majority take issue with the opinion on two fronts. It seems clear to me that the crime, defendant convicted of a was and treated to more punishment it, severe though because of even exist, that crime did not and punishment could not have been imposed, when he committed compose the acts that his criminal performed behavior. When he that death, acts caused this infant’s the defendant exposed 60-year prison term, himself to a the maximum punishment that he could for receive his criminal conduct. Subse- quently, legislature juries our authorized to determine whether a and, so, murder victim is an infant if greater penalties attached for killing the crime of my colleagues, infant. Unlike I believe that this penalties new crime and the it carries must be reserved for those who commit an infant killing on a date after the statutory crime’s conception. Its retroactive application constitutionally is unsound.
I disagree also with the conclusion that the defendant af- was forded I right speedy imagine his constitutional to a trial. cannot what exist, set of would if happened circumstances have to what here does deprivation not constitute a right of the fundamental constitutional to justice. and expeditious swift
The pretrial delay determination of whether offends the constitu- imperative tional of a speedy requires identify weigh trial us to things such as the length delay, it, genuine- the reason for decision, ness of a process defendant’s desire for a swift to and any resulting prejudice from a trial’s delay. Wingo, 514, Barker v. 407 U.S. (1972). 530, 101, 116-17, 33 L. Ed. 2d 92 S. Ct. My col- leagues correctly identify properly apply these factors but fail to them in reaching They their decision. seem to treat each factor as if the Supreme required speedy Court it to exist before a trial violation could declaration, occur. This view is reflected the “defendant cannot prong prejudice (Emphasis meet the last of Barker —that resulted.” added.) at App. 339 Ill. 3d 356.
I disagree prejudice with this conclusion. We are told that should in light speedy right be assessed of the interests which the trial recognizes impairment Justice an designed protect. While Powell
365
interest,
oppressive
he
out that
points
the defense as the most serious
itself,
He writes:
incarceration,
prejudice.
in and of
establishes
pretrial
disadvantages
of
the societal
previously
have discussed
“We
incarceration,
obviously
disadvantages
the
for
lengthy
but
pretrial
are
more serious.
cannot obtain his release
even
the accused who
impact on
jail awaiting
in
trial has a detrimental
spent
The time
life;
job;
disrupts family
the
It often means loss of a
it
individuаl.
or
jails offer little or no recreational
and it enforces idleness. Most
dead
spent
jail
simply
The
in
is
time.
programs.
rehabilitative
time
ability
in
Moreover,
up,
if
defendant
is locked
he is hindered
his
a
evidence,
witnesses,
prepare his
gather
to
contact
or otherwise
yet
has not
Imposing
consequences
anyone
those
on
who
defense.
Barker,
532-33,
L. Ed. 2d
Undeniably, imposed detention here visited length pretrial of rang year harm He in the new four upon this kind of defendant. times, confined jail cell, to a before authorities attended to the busi- so, deciding guilt ness of or innocence. Even the defendant did not his prejudice have to “meet a for there to be a constitutional prong” violation. As Justice Powell made it clear: regard
“We
none of the four factors identified above as either a
necessary
finding
deprivation
or
of
sufficient condition to the
of a
Rather,
right
speedy
they
trial.
are related factors and must
may
together
be considered
with such other circumstances as
be
sum,
qualities;
In
courts
relevant.
these factors have no talismanic
But,
engage
balancing process.
must still
in a difficult and sensitive
accused,
dealing
right
because
are
a fundamental
of the
we
with
ac-
process
recognition
this
must be carried out with full
in
speedy
specifically
cused’s interest
in a
trial
is
affirmed
Barker,
533,
118-19,
2d
92
Constitution.”
The tells us that each factor identified in Barker v. in оf the weighed light “must be considered of the circumstances by App. case as reflected an examination of the entire record.” 339 Ill. so, at If in it way 3d 354. we should set forth that record a that does justice. majority’s The is far too kind to happened treatment of what the State. 31,
The defendant on October 1997. was arrested and incarcerated immediately represent The public appointed defender’s office was Hawkins, public him. Neil an assistant defender with that experienced office, 5, 1997, assigned was as trial On he filed counsel. November 1997, By trial on the behalf. December speedy demand defendant’s discovery in the exchanged the State and defense counsel had formal case.
Ultimately, the testimony evidence this case consisted of the prosecution The witnesses. actual evidence took less than three full days of trial to present. Nothing presented on behalf of the defendant. The defense amounted to a challenge, reasonable doubt solely upon based the circumstantial nature proof of the State’s with regard actually to who committed the abuse that resulted this infant’s death. question Defense counsel framed the for the jury: “Obviously, this child There was abused. is no doubt about that.
*** is, The question [W]ho committed the acts that caused the ***[?]” death
It easy question jury Having was an for the to decide. taken two transcript proceedings hours to rеad the of the trial fin- from start to ish, I jury correctly. have no doubt that the decided it It seems abundantly clear that there was little to save this defendant from conviction, something that plea- commends defense counsel’s I bargaining only imagine effort. can the frustration he felt the when defendant scoffed at the fortunate fruit of that labor.
In considering weight assign how much to length delay the of the in deciding occurred, as a factor whether a constitutional violation has we are told:
“[Bjecause
trial,
imprecision
right
speedy
length
of the
of the
to
the
delay
provoke
inquiry
necessarily
[a constitutional]
of
that will
is
dependent upon
peculiar
the
of the
To
circumstances
case.
take but
example,
delay
ordinary
one
the
that can be tolerated for an
street
serious,
considerably
complex conspiracy
crime is
less than for a
Barker,
530-31,
117,
charge.”
This case was and with a defense to prepare. 8, placed
The case was on a trial docket call for December 1997. date, appeared On that someone other than Neil Hawkins and affixed to trial signature his to an order that continued the case a future January February docket call in either or of 1998. This tolled the 120- day statutory day trial constraint at 39. speedy practice County
The in Madison criminal courts is to apparent a The order of December employ form order to deal with continuances. 8, 1997, like every purposes, is order that followed. For illustrative each form order to continue this trial is attached as an exhibit to used this dissent. record, order, to indicate nothing
There is in the other than the nothing There in the that a motion for a continuance was made. is making for the motion or record to indicate either the reason granting reason for it.
367 8, 1997, identical order is an Immediately after the December 1997, until 22, that continues the case order file-dated December for a continuance. March of 1998. There is no written motion (725 4(a) of the Code of Criminal Procedure of Section 114 — 4(a) (West 1996)) “The defendant or the State ILCS states: 5/114 — days than 30 may move for a continuance. If the motion is more made in writing that it be arraignment[,] require after the court shall supported by provision specific affidavit.” This sets forth a host of a continu grant reasons that a defendant could offer to advance delay. ance and warrant trial’s delay factor are the reasons for
Important
analysis
to the
of the
related to
Supreme
points
“Closely
continuances. As the
Court
out:
***
Here, too,
length
delay
justify
delay.
is the reason
differ-
Barker,
U.S.
weights
assigned
ent
should be
to different reasons.”
531,
117,
at
The sole written motion for continuance to be found this record it, on April delay was filed 2001. The need for was statеd in but the proceeded single case to a trial. a motion for a continu Not written accompanied ruling postponing single ance a this case. Not a order of continuance states the reason a further continuance would be war ranted. I expect 3½-year delay would some reason of record for a bringing someone to trial. majority
The
question
complete
does not
absence of reason. It
notes,
simply
why many
can find no
in the
for
“We
basis
record
so
requested.”
Then,
continuances were
Since the that I speculates was will indulge in some speculation my possibility. own about that The inviting bargain imaginable. State offered the most defense plea No lawyer urge accept worth salt would have failed to the defendant to the regard State’s offer. Defense made his exhortations in this counsel advice, began. known before the trial Had the heeded his he defendant already would family appealing be reunited with and friends instead of 70-year his murder conviction and his term. prison to accrue procured Could it be that 28 abstruse continuances were jail accept more time so that the defendant would the State’s offer? Mindful of apparent produce, the outcome that the trial would could defense counsel have decided pretrial delay improve that would his convincing plead guilty? Only chances of the defendant to a few more postponements trial would have transformed the State’s offer into a cell, key jail to the defendant’s him an in promising immediate release guilty plea. delay return for a A little more would have forced the weigh defendant to the severe risks attendant to a first-degree-murder against option trial the of surrendering going his innocence and home. If such a it strategy employed, justify could not the State’s been, provide speedy might failure to a trial. Beneficent as it have its diminish design to the by having trial’s worth the defendant address punishment, disposition the State’s desire for and its desire for a trial, through pretrial detention, without a a endless would subvert right. may fundamental constitutional The fact that defense counsel a design promote have viewed this as means to the defendant’s best duty interests could not absolve the State of its to see that the United States Constitution was followed. certainly knowing
The State almost have to be a partner would design. postponements such a It would have to allow for 28 over 3V2 years good purpose, knowing without reason or what defense counsel delay improved disposing knew —that further its chance of of the case while, time, without a trial at the imposing punishment same that it deemed A appropriate. criminally constitution that ensures the ac- speedy cused a trial could never abide such an alliance between lawyer, particularly State and an accused’s when that notifies accused complains lawyer’s the State and about his unwelcome continuances upon speedy rights. and their effect his trial Condoning prosecutorial ripe a fashion a tool practice such would The criminal code arms present-day prosecutors for abuse. with are to range penalties, many applicable wide of offenses and of which bonds, Multiple charges enhance increase the same criminal acts. detention, bargaining. pretrial plea and allow considerable room for necessary the trial to Allowing defense counsel to continue accrue punishment plea bargain to meet a recommendation would license to with a lot of trials that it would otherwise have to af- dispense State purpose ford. Provided the State could suborn defense counsel its impose the State could all of the decent-enough plea bargain, with a by confining that it felt deprivation of freedom someone deserved jail illusory By an trial. the time an county individual to await trial, right afforded the to a freedom’s call would accused would be *18 its surrender. invite guilty. plead made it clear that he did not wish to
The defendant 369 innocence, He insisted in something right his that he had the to do. And he personally asserted an immediate in right his to trial March of 1998, years prior three to him affording right. the State No mat- ter well-meaning be, how a lawyer may defense no matter how beneficial a plea bargain may seem, option it is not a valid defense to jail allow a client to in a years sit cell for on end in order him to coerce into pleading guilty.
The best that the majority say can about the lack of reason behind the 28 continuances is that defense counsel asked for them and that generally defendants are by lawyers’ However, bound their deeds. record not does indicate that always defense counsel asked for the 18, continuances. More importantly, 1998, on March the defendant made it known that he was unhappy delay already with the incurred. jail He took a pencil hand and wrote a letter to the Court in which “humbly” he petitioned the something court to do dеlay about the and about his appointed lawyer, kept continuing who the case without his consent and against his The part will. letter is a of the record. What is part not a of the record is anyone what did about addressing this complaint. April 27, 1998,
On another entered, continuance order again without a written motion or a stated reason. The form order bore no signature from either an Attorney assistant State’s or the defendant’s lawyer. It 15, 1998, continued the trial to June on the defendant’s mo- tion. The order just was entered court, five weeks after the and presumably the attorneys, knew that another continuance was not what the defendant wanted. It was entered the defendant’s absence. He jail remained in and speedy his trial concerns went unaddressed. 29, 1998,
On June an order was entered continuing the trial until August 10, 1998, on the defendant’s motion. There was no written motion, no stated reason for the delay, attesting and no signatures from either of attorneys. nothing Since to happened seems have 15, 1998, on June statutory right defendant’s speedy to a trial rekindled on that date. The up days State used another 14 of the 120 days bring allowed to the defendant to trial days on time. It had 67 left, but the time tolled. 21, July
On court, the defendant again request- wrote to the ing corpus form, habeas a subtle reminder of the disdain for further delay that he had expressed earlier.
The only documents August 5, 1998, filed of record between 13, 2000, March are 15 continuance, consecutive form orders of repeat- edly resetting the trial to attributing future trial dates and the result- ing delay to the defendant. Neither the State nor counsel filed defense anything, in anticipation trial, of a prior any settings. of the 15 trial rang in the for months. The defendant delayed
The trial was home for two cell that had been his millennium from the same new *19 delay setting the need for nothing There is forth previous years. new allowing it. gives a reason for nothing and that 1998, 31, setting, 5, 1998, August an August An trial date became 5, 1998, date. On which, turn, to an October trial postponed in was to 1998. When 5, 1998, postponed the trial was November October arrived, the next form continuance days passed before November 30, 1998. The executed, the case to November continuing order was brought to trial the defendant had to be statutory time within which days. to 56 diminished 4, January 30, 1998, to a postponed trial date was
The November 21, 1998, a form order continued case 1999, setting. On December February to a T, 1999, subsequently continued February to which was to an 22, 1999, postponed the trial 22, 1999, setting. February On was 7, June setting was continued to 5, 1999, setting. trial That April 12, 1999, trial 1999, July to a 7, setting postponed was 1999. The June delay, and there was any stated need for further date. There was never allowing it. any finding give to a reason for never 1999, continuance order was 12, the same kind of form July On The trial was rest of the summer. entered, continuing the case for the 1999, 20, the trial was 20, On September 1999. Sеptember next set for 18, 18, On October October 1999. form order until again postponed by 15, 1999. in to November 1999, continued like fashion the case was for a on 1999, and set trial 15, the case was continued On November 6, December 1999. continuance order was entered 6,1999, another form
On December all 7, was akin to February 2000. This order continued the case to no motion and stated in there was no written of the other orders that order was dif- However, this time the it allowed. why reason for was defendant’s finally addressed the entered it judge The who ferent. the continuance order: upon following passage appears The wishes. or trial.” by plea either to be resolved continuances. Case “No further jail confined defendant still in with the year a third new ushered As one. that he would receive trial, finally appeared it awaiting time, of passage orders marks of continuance As this series to nothing There is in the record. activity absolutely no other there is seriously prepared for the defense the State or indicate that either one court setting. Not trial any approaching of trial in advance necessary proceedings than those place, took other proceeding jail for The defendant sat order. continuance another form produce reason. known months without another 17 form order a another plea, for a trial or day mandated On the entеred, 13, postponing continuance was the trial until March 2000. previous The record is silent on the manner in which the court’s mandate dealt with. No written motion filed and no reason was was 7, given why delay necessary. February for the added was The order, 13, 2000, continuing form the case to March was different significant way. by in one marked as a motion being Instead defendant, by agreement, it stated that the motion was and it judicial a finding delay contained was attributable to the year leap year, State. Since the 2000 was a the State’s allowable statu- tory time it provide speedy by within which had to a trial diminished days, 35 more to a total of 21 remaining days. 13, 2000, entered,
On March another form continuance order was continuing 17, 2000, April the case to at the request. defendant’s It However, 21, 2000, was like all the others. on March form of new order appeared of record. It followed 16 consecutive form orders of spanning continuance years. almost two 21, 2000,
The March order anwas “Order of Pre-Trial and Trial Setting.” It set the trial April 17, 2000, for 9 a.m. on pretrial ordered a 14, 2000, conference at 9:30 a.m. on April and declared that the case *20 would pleaded 17, be either tried or April on 2000.
The record does not reflect anything happened 14, on April 2000. in pleadings No anticipation impending of an trial by were filed party. either Whether the pretrial conference was held is not known. There is nothing the record to anyone indicate that believed thаt 17, April 2000, awas date on which the trial would commence. On April 17, 2000, another form entered, order of continuance delay- was ing the July 10, 2000, trial to a setting. The trial postponed was later by another form continuance order and September 5, was reset for 2000. July 12, 2000, On the defendant sent the court a handwritten mo- tion to appointed attorney. dismiss his said, pertinent Here is what it part:
“That Hawkins[,] due to ineffective assistance of counsel Mr. Neil Attorney herein[,] for the Plaintiff should be dismissed from His following case for the reasons:
A. Mr. Hawkins has continued Plaintiff’s case without his consent, thereby violating rights his to a fast and speedy trial.
B. Mr. strategies Hawkins has never discussed trial with Plaintiff!,] nor has he been to see Him Dec[.] since 1997. gave
C. Mr. copies Jury [ Hawkins never Plaintiff of his ] Grand Transcrips [sic] nor copies Discovery [sic] of His Motion of requested in 1997.
D. gotten Mr. Hawkins has not in contact with Plaintiff’s witness’s [sic].” true or not does not matter. any allegations
Whether of the were 2000, the March pleading July this was filed in of it reiterated When 18, 1998, after 20 additional continuances had been complaint, which inquiry by might expect and received defense counsel. We some sought defense proceeding at which into the defendant’s concerns —some continuing refuted the claim that he was this case counsel at least doing nothing prepare to the case for against the defendant’s will and why the continu- might explained a record in he expect trial. We which Instead, nothing. there was necessary ances to the defense. were anything, despite extremely an the court nor the State did Neither all of which were repeated postponements, of trial peculiar pattern More in the defendant’s absence. by defense counsel promoted any further fully scrutiny some of importantly, expect we would in the defendant’s by made defense counsel request for a continuance absence. request record after the defendant’s written
The next document of form continuance order entered discharge lawyer his is another to 2000, 2000, 2, to October with the 5, continuing the trial September agreed to this to the defendant. The State resulting delay attributable agree why the State would nothing We have to indicate continuance. reiterated that defense after the defendant to another continuance of nothing explains identity exceeding charge. his And counsel attorney on the form order as Kelly, signature appears John whose acting on the defendant’s behalf. 2000, Bate-stamped is C 59. 5, continuance order September
The 60, record, is another form Bate-stamped C The next document 11, 2000, dated December and continues order. It is continuance 2001, at- 22, resulting delay being agreement January to by case form. We do not signed Neil Hawkins tributable to the defendant. 2000, if or even setting the trial of October happened know what at again will- why are not told the State was such an event. We there was that the al- delay the case. We do know to the further ing agree bring the the State had to statutory time within which lowable 2, 2000, and between October clearly to trial ran out defendant *21 discharge upon based this 11, one filed for a December 2000. No ever trial, that and statutory right speedy to a of the defendant’s violation However, assessing all of failing. of this right lays by forfeit virtue hardly it is inquiry, in the constitutional the factors involved for discharge entertained a State would have that the insignificant saw the The defendant had a motion been made. delay unacceptable jail cell. It was County in Madison a arrive while confined year speedy trial. he awaited year to arrive while the fourth new 2001, 12, to March 22, 2001, trial was continued the January On it, no reason request. at the Like all of the orders before defendant’s necessary. There no mo- given why delay was another was was written affidavit, continuance, an filed to obtain the accompanied by tion for a continuance. filed, 12, 2001, continuance order was
On March another form attributing the the continuing request case at defendant’s 2, trial on 2001. delay April to the defendant. The case was set for 12, 2001, April the trial to Although continuing the March order 2, it, 2001, all that it was preceded looked identical to 27 form orders not did indicate that Something changed. the same. had The order not the court would tolerate no further continuance or that the case would 2, be by plea April only resolved a trial or on 2001. But one has to look pleadings 12, 2001, at the filed after the March order that the to know finally going go case was to to trial. 29, 1998, order,
Between June and the last for more continuance than years, by not one document filed either party this 21k filed, orders, only case. The documents other than form continuance pro were the defendant’s se motion to and the one-page dismiss order setting 17, 2000, April as the trial date. No one filed supplemental discovery any motions. No one filed motion in limine. one filed a No motion to alter the charging instrument. No one filed a motion to one anything years, dismiss. No filed for more than despite the 2V2 seeming approach of an trial month impending after month. The record completely is barren of anything to indicate that either State truly or defense counsel anticipated approaching any an trial on prior occasion to April clearly appears any 2001. It as if no one took settings of the other trial seriously. appears everyone It as if knew that really going case was not proceed any to to a trial at time 29, 1998, 12, 2001, setting. between June and the March I am left to why wonder the State would not have filed the supplemental 15, 2001, discovery motion that it filed оn March prior to earlier if setting, truly anticipated setting. some it a trial at that I only speculate why can did State not file the additional witness list 15, 2001, it prior So, filed on March an earlier trial impending to date. too, 27, 2001, I why wonder the State waited until March to file a mo- tion for to charging leave amend its instrument and waited until 28, 2001, March to file an motion in limine to limit extensive by Somehow, evidence in fil- admissible the defense. it took no interest ing any Yet, such matters before other trial date. it man- approaching aged to file a flurry requests prior setting actually to the trial advanced to a trial. any
The same is true of He nothing prior defense counsel. filed setting 29, 1998, 12, 2001, trial June between and the March docket *22 30, 2001, separate call. On March he filed 11 motions in limine to case, exclude or limit the admission of evidence in the two motions to case, dismiss, and a written motion to continue the which tendered as a prepared light having reason that the was not in the State defendant of charge prior altered the one week to the trial date. noted, a previously logical explanation As there is for this However, exists, such if it indeed cannot phenomenon. explanation, detention, particularly when lengthy pretrial excuse the defendant’s everyone right speedy of his assertion of the to a trial. involved knew Wingo, pretrial delay years.
In v. the was four But the Barker delay. after the first 10 months of that defendant was released on bond Here, years pretrial of detention makes the trial’s the defendant’s 3V2 something that should not be tolerated under delay untenable. It is constitution, long profess our at least so as we that it ensures the An right speedy fundamental to a trial. examination of the trial egregiousness delay’s the of the duration. The proceedings compounds of the defense tendered in this delay purpose preparing need to for the justify year delay. case could not one of the lengthy delay we conduct a search for the reason such a oc- When curred, for only statutory request- none exists. The time the method followed, a was and defense counsel tendered a valid ing continuance trial, proceeded the the case to a trial. Month after postpone reason to proceed- at month, year, after counsel continued the case year defense many agreed the State defendant did not attend. On occasions ings the postponement was But no reason for the trial’s to the continuances. orders. entry to the of continuance required prior ever tendered or delay, coupled for the with that any The of valid reason trial’s absence throughout, that the was confined delay’s length and the fact defendant deprivation. of a constitutional finding commends the to afford the constitu- Clearly, еxpected this defendant State trial, clear. It expectation a and he made that promise speedy tion’s of county jail awaiting confined to a cell indisputable person that a seems Inexplicably, to afforded one. genuine be his desire be a trial would lawyer his was as- repeated heed to his assertion that paid any no one prompt of his desire for a ongoing the State in an violation sisting attorney for an requests one honored his disposition of his case. No that, one cared after two asking for continuances. No stop who would him lawyer give and court to dismiss his years delay, of he asked the on the a more insidious assault imagine in court. I cannot day his here. the one that occurred right speedy to a trial than and by delay, severely prejudiced the defendant was Finally, delay’s length complete egregious as as the prejudice —the postpone- routine delay inexplicable and the absence of reason for repeated incarcerated accused’s the trial in the face of an ment of major- The continuing every trial date. attorney about his complaints lengthy a notes, argued spent can that defendant ity “Although it be anxiety and unnecessary prison, resulting amount of time in concern, length of time caused his defendant cannot show that this analyzes It then impaired.” App. defense to 339 Ill. 3d at 356. be concludеs, “Defendant attempt impairment defendant’s to show and is helped of how have his defense explanation offers no this would required by this showing prejudice therefore unable to make the does not make App. majority of Barker.” 339 Ill. 3d at 356. The prong right interests the sixth amendment key mention of one *23 It is pretrial detention. speedy protect oppressive trial exists to — deten- completely profound inexplicable pretrial silent about the tion, Instead, the redefines a ignoring majority its visceral harm. lengthy delay’s solely recipient harm in terms of whether the of that upon ability harm can an effect his to defend demonstrate adverse against charge. year
We are told that one of confinement is pretrial presumptively 42, 52-53, prejudicial. Crane, v. Ill. 562 People 195 2d 743 N.E.2d (2001). legal This tenet is offered without consideration of how a year’s delay impair ability against would to defend a criminal in charge. principle interesting question light This raises an of the majority’s analysis. any Provided that a defendant could not show defense, adverse effect to my colleagues his would find that a defendant by “unable to make the of showing prejudice required prong this (339 356) of if App. Barker” Ill. 3d at an incarcerated defendant had to await trial for a decade? much time would an individual have How county jail awaiting majority to serve trial before the could perceive some harm inflicted from that fact alone?
The
County jail
facility,
county
Madison
is a fine
but it is still a
jail.
privacy.
Inmates are multibunked and have no
There are no
matter,
grounds
or,
outside
in which to recreate
for that
in which to
see the sun and breathe fresh air. There are no windows
facility necessarily
day
day
cellblock. Confinement in the
visits
after
slowly.I
passes
idleness and the boredom attendant to it. Time
wonder
any
say
by being
if
of us
be unharmed
confined
could
we would
of 2006.
there tomorrow to await a trial set for November
speedy
to consider in a
trial
though
Even
each of the four factors
deprivation
examination does not have to be met for a constitutional
occur,
view,
In
record
present
my
all four factors are
here.
this
trial
compels
right
speedy
specifi-
the vindication of the accused’s
to a
Barker,
533, L. Ed. 2d
cally affirmed in the constitution.
The finding this we do not wish to promote type delay case, that occurred in this but we do not believe, case, delay under the circumstances of this that the reaches the level of a constitutional violation ***.” 339 Ill. App. 3d at 356-57.1 respectfully disagree. would If happened what here fails to reach a infirmity, level of constitutional if an individual can be held without a reason, trial for long any despite repeated protestation, so without promise constitutional is not worth the paper upon which it is written. reasons, respectfully For I these dissent.