Opinion
No. 5-02-0342
July 1, 2005. Corrected Opinion
Appeal from the Circuit Court of Jefferson County, No. 00-CF-69, Honorable Terry H. Gamber, Judge, presiding.
Daniel M. Kirwan, Deputy Defender, Paige Clark Strawn, Assistant Defender, Office of the State Appellate Defender, Fifth Judicial District, Mt. Vernon, IL, for Appellant.
Hon. Gary Duncan, State's Attorney, Jefferson County Courthouse, Mt. Vernon, IL, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kevin D. Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, for Appellee.
Gary Kubicki begot a son. He named him Jason. Gary fathered Jason into young adulthood. It seemed that Gary raised a decent, upright human being. Then, at the insistence of his girlfriend, Dawn Workman, Jason murdered his father while his father slept. Jason Kubicki, who currently serves a 50-year term of imprisonment for his father's murder, testified at Dawn's trial that he killed his father while under Dawn's spell. He told jurors that she had convinced him that their continued union, and their future happiness, depended upon killing Jason's entire family.
The original murder plot called for the stabbing deaths of everyone who lived with Jason. Dawn agreed to knife the female family members-Jason's mother and grandmother. Jason was to stab his father and his younger brother.
In the early morning hours of February 24, 2000, Jason quietly approached the man who nurtured him for 19 years. Knife in hand, he stood over his father, who slept soundly in a living room chair. Jason paused. He could not bring himself to slit his father's throat. He walked outside to his car, where Dawn awaited news of Gary Kubicki's bloody demise. Instead of reporting the foul deed done, Jason complained about a pang of conscience. At Dawn's urging, Jason returned inside to again try to murder his sleeping father. Again, he could not do it.
According to Jason, Dawn was relentless. Apparently, Jason could see that he would not maintain Dawn's continued affection, and could not win her future admiration, without doing something to take his father's life.
Jason went back into the house for a third time. He went to the garage, where he found a baseball bat. Bat in hand, he again approached the chair where his father rested. Jason swung. The bat fractured Gary Kubicki's skull. While unconscious, Kubicki was clearly still alive. A panicked Jason did not know what to do. Then Dawn walked in. When Jason suggested taking his injured father to the hospital, Dawn insisted that he finish his father off. Jason then further bludgeoned his father's head with the bat, and managed to kill him. Thereafter, he carried his father to the family pickup truck, dumped his father into the truck bed, and drove his corpse to Waltonville Lake. Dawn followed in Jason's Pontiac. After driving to the lake's edge, Jason took his father out of the truck bed and placed him into the cab. Dawn Workman helped Jason push the truck into the lake. Jason said goodbye to his father, returned to a hotel room, and took a shower with Dawn. They both had a father's blood on their hands, and needed to cleanse themselves of it.
Dawn Workman (the defendant) currently serves a 40-year prison term, the punishment imposed after a Jefferson County jury found her guilty of first-degree murder, for promoting the death of Gary Kubicki.
We are again presented a sixth amendment ineffective-assistance-of-counsel claim. The defendant takes trial counsel to task for failing to seek discharge based upon the State's violation of her statutory right to a speedy trial.
It constitutes ineffective assistance of counsel where at least a reasonable probability exists that the defendant would have been discharged had counsel raised a speedy-trial violation. People v. Cooksey, 309 Ill. App. 3d 839, 844, 723 N.E.2d 784, 789 (1999). The failure of defense counsel to argue a speedy-trial violation in a posttrial motion will also constitute constitutionally incompetent counsel where there is at least a reasonable probability that counsel's client would have been discharged had the issue been addressed. People v. Garcia, 251 Ill. App. 3d 473, 478-79, 621 N.E.2d 1035, 1039 (1993).
Here, the defendant's statutory speedy-trial rights were never raised, either in a pretrial motion to dismiss or in a posttrial motion. Therefore, we must determine whether the defendant was deprived of effective assistance of counsel by inquiry into the merits of the speedy-trial-violation claim. Garcia, 251 Ill. App. 3d at 479, 621 N.E.2d at 1039. Counsel's failure to argue a speedy-trial violation cannot amount to constitutional incompetence if no basis for raising such a violation exists.
Here are the facts salient to the merits of the speedy-trial-violation claim.
The murder scene was found and processed by crime scene technicians on February 24, 2000. The next day, the defendant was arrested and taken into custody. She was arraigned on a single charge of concealing a homicidal death. The public defender, Jim Henson, was appointed to represent her. The defendant's preliminary hearing was set for March 22, 2000.
On March 22, 2000, the defendant waived arraignment on a bill of indictment, returned March 17, 2000. It charged concealment of a homicidal death. After the defendant waived arraignment, Judge Gamber commented:
"All right. We'll show a plea of not guilty to these charges. Ms. Workman is in custody, has been since February 25, 2000. We could go to June 13 or sooner for jury trial."
The prosecutor suggested June 13 and Jim Henson said, "That would be fine."
The case was set for trial by jury. The trial was to take place on June 13, 2000, day 109 of the defendant's incarceration.
On May 31, 2000, the State filed an amended information that charged four counts of first-degree murder and a count of armed robbery, as well as the existing charge of concealing a homicidal death. Jim Henson explained that the defendant needed some time to contemplate her predicament, and weigh things in light of a plea agreement offer tendered along with the new charges. He asked to continue the final pretrial conference. The State agreed, and the final pretrial conference was postponed for one day.
The next day, Henson announced that further negotiations about a plea had broken down and that the defendant wanted to "go ahead to trial." Judge Gamber confirmed that he referred to trial on June 13, 2000. After Henson acknowledged that his client desired a trial on the original trial setting, the State's Attorney, Gary Duncan, spoke.
"With respect to the trial setting on June 13th[,] your Honor, I would not be asking at this time that your Honor vacate that. However, I have spoken yesterday with Mr. Henson about certain matters, including the fact that a tremendous amount of forensic examination has to be done, analysis at the lab of materials in this case. None of which, to my knowledge, is back. I spoke to Detective Kemp yesterday. He's been in contact with the crime lab repeatedly. The backlog of other cases there has prevented them from analyzing that evidence yet. So we don't have that material evidence in hand."
Mr. Duncan then announced that he would be filing a written motion to continue the case, pursuant to extension provisions found in the speedy-trial statute.
On June 5, 2000, the State, pursuant to section 103-5(c) of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/103-5(c) (West 1998)), filed its motion for continuance.
Section 103-5(c) reads in pertinent part as follows:
"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." (Emphasis added.) 725 ILCS 5/103-5(c) (West 1998).
On June 6, 2000, Mr. Duncan argued the motion.
"The People's Motion to Continue, your Honor, is based on the fact that there are numerous items in evidence that have been taken to the crime lab at Carbondale. Those items were transported almost immediately after the event in this case with the bulk of them having been taken to the crime lab on March 1 of 2000. I have spoken with personnel there about the nature of these issues and they have assured me that they can accomplish the analysis of these items with the timeframe established in the motion, your Honor."
Mr. Duncan filed a verified motion that explained that the testing problem was due to a backlog, created in part by an absence of lab personnel due to maternity leave.
Judge Gamber made a finding that due diligence to obtain the tests in time for the trial setting had been exercised by the State, and he granted the State's motion. The case was reset for trial on August 1, 2000, 35 days longer than the 120-day speedy-trial limitation.
On July 12, 2000, Jim Henson asked Judge Gamber to vacate the trial setting. Henson had been injured and was unable to work on cases. He needed more time to prepare this case for trial. The case was continued on the defendant's motion and set for a pretrial conference on August 16, 2000.
On August 16, 2000, trial was set for February 27, 2001.
On December 5, 2000, Jim Henson filed a motion to have the defendant examined to determine whether she was mentally fit to stand trial. The defendant was found fit on March 14, 2001. Trial was set for August 14, 2001.
On August 14, 2001, jury selection began.
On August 15, 2001, Jim Henson asked to withdraw as defense counsel. Henson labored under a conflict of interest. Dawn Workman's uncle, William Hall, was a key prosecution witness. He was also Henson's client. Henson acquired privileged information about past illegal sexual activity between Hall and the defendant through his representation of Hall. Had the trial continued, Henson could not have possibly represented Hall's interests and the interests of the defendant. Those interests were at odds. Henson was permitted to withdraw, and new counsel was appointed. Jury selection ceased, and the case was reset for September 18, 2001.
The case was continued again at new defense counsel's request on August 30, 2001. Trial was rescheduled for February 27, 2002.
Trial commenced on February 27, 2002. On March 4, 2002, the jury found the defendant guilty of murder in the first-degree and not guilty of armed robbery. On May 2, 2002, Judge Gamber imposed punishment-a 40-year prison term. This appeal ensued.
Initially, we note that the merits of the claimed speedy-trial violation turn upon events that transpired between the day of the defendant's arrest on February 25, 2000, and July 12, 2000, the date on which Jim Henson moved to continue the August 1, 2000, trial setting. Thereafter, every new trial setting was impliedly agreed upon by the absence of a written demand for a speedy trial or an oral request on the record demanding one. 725 ILCS 5/103-5(a) (West 1998). We flatly reject the defendant's claim that Henson's withdrawal motion was improperly granted and, hence, should not be a delay attributable to the defendant. Henson clearly labored under a conflict that Judge Gamber needed to address.
The defendant maintains that the 120-day speedy-trial limitation expired on June 25, 2000, and that the time did not toll on June 5, 2000, when the State was granted a continuance. She argues that the State did not make an adequate showing of due diligence to support its motion. She compares the circumstances presented here to those that we faced in People v. Battles, 311 Ill. App. 3d 991, 724 N.E.2d 997 (2000).
The State maintains that we have no need to review Judge Gamber's finding of due diligence because the statute's time limitation was not even close to expiration on June 25, 2000. The State argues that all of the time that expired between the initial arraignment on February 25, 2000, and the original trial setting of June 13, 2000, should be deemed agreed-upon delay by virtue of the defendant's silence.
Neither party accounts for the one-day continuance granted at the defendant's request on May 31, 2000. It tolled the running of the statute's time constraints for one day.
The State's position misconstrues a provision of the speedy-trial statute. The statute reads, in pertinent part:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody * * *. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record." (Emphasis added.) 725 ILCS 5/103-5(a) (West 1998).
The State argues that the defendant needed to file a written demand for trial or make an oral demand for trial on the record when she was arraigned if she wanted a trial within 120 days. The State thinks that we should treat all of the time between the defendant's arraignment and the initial trial setting as agreed-upon delay. It takes the position that since the defendant made no demand, the speedy-trial time constraints were tolled between February 25, 2000, and June 13, 2000.
We do not agree with the State's interpretation of the statute's demand provision. The provision that implies agreed-upon delay in the absence of a demand for trial was not intended to apply to settings from initial arraignments to preliminary hearings or from preliminary hearings to pretrial conference settings or from pretrial conferences to the initial trial setting within the original 120-day period. The State's view would render meaningless that provision that provides pretrial detainees the mandatory right to a trial within 120 days. Its adoption would rewrite the guarantee to trial with dispatch as a right only afforded to those who demand it. If that was our legislature's intent, section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/103-5(a) (West 1998)) would read like section 103-5(b) of the Code ( 725 ILCS 5/103-5(b) (West 1998)), which provides people awaiting trial on bail the right to a speedy trial within 160 days of the date on which they demand one.
We think the legislature wanted anyone taken into custody to have an automatic right to a speedy trial within the first 120 days of incarceration, provided that he or she did not do anything to delay proceedings. While an initial trial setting within the first 120-day period may account for most of that time, it is not a delay of the proceedings within the context of an incarcerated inmate's right to a speedy trial. As long as all settings are within the first 120 days of incarceration, the defendant is receiving the statutory right to a speedy trial. Under such circumstances, a defendant does not have to be heard demanding anything in order to receive a trial with the kind of dispatch contemplated by statute. He is already in receipt of that.
Here, the defendant did not have to file a written demand or oral demand on the record in order to ensure a speedy trial within the first 120 days of her incarceration. She did not have to demand that which she was already receiving. The absence of a demand when the June 13, 2000, setting was made does not imply agreed-upon delay. The 109 days to that original setting, less the 1 day of delay due to the defendant's request, count in computing the statutory time constraints upon the State.
As we earlier noted, after the initial 120-day time constraints are passed, and a case is postponed from its original trial setting to trial settings beyond those constraints, a defendant needs to demand an earlier setting if he or she really wants one, or else a chosen setting, no matter what the date, is deemed satisfactory to the defendant. There were numerous settings here, after August 1, 2000, that are considered agreed-upon settings because of an absence of a formal demand for trial.
On June 6, 2000, the trial judge allowed the State a 60-day continuance in order to procure awaited forensic testing. If he abused his discretion, in finding that the State had exercised due diligence in an effort to ready the evidence in time for the initial trial, speedy-trial constraints were never tolled by the granted request, and the defendant's speedy-trial rights were violated after June 26, 2000.
The defendant relies upon People v. Battles as support for her position that the State failed to make an adequate showing of due diligence and that the trial judge abused his discretion in finding otherwise.
In People v. Battles, we reversed the defendant's conviction based upon a speedy-trial violation, where the State had sought and obtained a 120-day continuance to procure DNA testing but had failed to establish the exercise of due diligence prior to the request.
People v. Battles was decided four months prior to the State's motion for continuance in this case. It set forth guidance for such requests. The primary focus was on what constituted due diligence:
"The word `diligence' is generally defined to mean prudence, vigilant activity, or attentiveness. See Black's Law Dictionary 544 (4th ed. 1968). The term `due diligence' means:
`Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard but depending on the relative facts of the special case.' Black's Law Dictionary 544, 589 (4th ed. 1968)." Battles, 311 Ill. App. 3d at 997, 724 N.E.2d at 1002.
We also explained the State's burden to show due diligence:
"The State bears the burden of proof on the question of due diligence. [Citation.] In order to meet this burden, the State should tender a full explanation of each and every step taken to complete DNA testing within the 120-day speedy[-]trial term. The steps articulated should comprise a course of action that a reasonable and prudent person intent upon completing tests within 120 days would follow. Further, the showing should explain why the efforts engaged in fell short of their objective and resulted in an unavoidable need for delay." Battles, 311 Ill. App. 3d at 997-98, 724 N.E.2d at 1002.
We also held that rapid retrieval of testing materials and delivery of those materials to the crime lab for testing is not enough to show a prudent and assiduous effort to complete DNA testing within the 120-day speedy-trial term. We reasoned:
"If the State gathered and delivered everything needed for DNA testing on the day of arrest, but thereafter crime lab technicians stood idly by and ignored those materials for 120 days, if the State did not even try to test the materials within the 120-day speedy[-]trial term, a court would be hard-pressed to find that authorities pursued a course that a reasonable and prudent person intent on procuring DNA tests within 120 days would follow." Battles, 311 Ill. App. 3d at 1000-01, 724 N.E.2d at 1004.
Finally, we addressed the State's position that the crime lab was "quite backlogged." We pointed out that a comment that the crime lab was backlogged did not permit us to conclude that diligent efforts to complete testing were unavoidably frustrated by the lab's workload. We commented:
"Some kind of testing backlog will always exist. The State needed to explain more than its mere existence. It needed to explain what reasonable and prudent effort was made to deal with that backlog and why the backlog hampered the effort to complete the particular testing at issue. The trial court was left to wonder whether the State even asked a crime lab technician to begin testing at any time prior to the request for continuance.
We cannot eliminate the exercise of due diligence as a prerequisite to an extension of speedy[-]trial constraints. If the mere assertion of a backlog's existence could constitute reason enough for use of section 103-5(c), its 120-day extension would become automatic. A showing of due diligence would become a thing of the past." Battles, 311 Ill. App. 3d at 1001, 724 N.E.2d at 1004-05.
The section 103-5(c) motion for continuance filed in this case contained four paragraphs that dealt with the State's claim of due diligence. The paragraphs read:
"6. The People have acted diligently in obtaining laboratory analyses of the evidence in that the bulk of the items were taken to the crime laboratory on March 1, 2000 in the week following the homicide.
7. Owing to a backlog of work at the Crime Laboratory and to the complicated and multistep analysis required, the analyses have not been done nor have reports been received.
8. On June 1, 2000[,] Gary Duncan spoke with laboratory personnel Dana Warren and Michael Norbut. Mr. Norbut does fingerprint and palmprint comparisons and Ms. Warren does serology and biology. Mr. Norbut has not yet received the items for his analysis. Ms. Warren is presently engaged in analysis of the items and her work must be performed prior to transfer to Mr. Norbert [ sic].
9. Dana Warren told Gary Duncan she has a substantial backlog of work and just now is able to work cases from January and February of this year. She is the sole person in her section, her colleague, Stacey Spieth[,] is on maternity leave, and Ms. Warren herself is pregnant and cannot work with certain chemicals because of their known risk to pregnant women. For the latter reason, no DNA work is being done in her section at the Carbondale Laboratory. Any DNA analyses are transferred to other laboratories."
The State's tender of this information as the basis for its due diligence claim mirrors the information offered to support the due diligence claim made in People v. Battles. Simply put, the State asked for a finding of due diligence based upon prompt retrieval and shipment of testing materials to the State's Carbondale laboratory and an absence of any effort to test those materials because that laboratory had a substantial backlog due to its understaffed condition. The State's position that it exercised due diligence to accomplish timely testing was nothing more than an explanation that the Carbondale lab was simply unequipped to perform timely testing. Even when all of the DNA testing was shipped to other laboratories because of Warren's pregnancy, and only fingerprint, blood, and hair samples were being examined at the Carbondale laboratory, Warren was unable to begin work until the month of June, on materials received as early as January. The State's due diligence submission in this case was a declaration that the State was operating its southern Illinois forensic program in a manner that ensured its inability to develop forensic evidence in compliance with its speedy-trial obligations. There was simply no effort to accomplish forensic testing within the 120-day time constraints, much less a conscientious effort.
There was no exercise of due diligence in this case, and the finding to the contrary was misplaced. Because the State failed to comply with a necessary prerequisite to its use of a section 103-5(c) extension of its speedy-trial obligations, it was not relieved of its obligation to afford the defendant a trial within 120 days of her arrest. On June 26, 2000, the 120-day deadline arrived. On June 27, 2000, the State violated this defendant's statutory right to a speedy trial. Had defense counsel filed a motion for discharge, a reasonable probability exists that the motion would have been granted. Therefore, the defendant received ineffective assistance of counsel.
Because the State cannot undo the speedy-trial violation that has occurred in this case, we find it unnecessary to remand for further proceedings. We reverse the defendant's conviction.
Reversed.
DONOVAN, P.J., and GOLDENHERSH, J., concur.