People v. Davis

Opinion

Filed 4/3/08 NO. 4-07-0197

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County ISIAH K. DAVIS, ) No. 06CF293 Defendant-Appellant. ) ) Honorable ) Michael D. Clary, ) Judge Presiding. _________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

On May 30, 2006, the State charged Isiah K. Davis with

armed robbery against Lou Ann St. Onge (count I) (720 ILCS 5/18-2

(2006)). On November 2, 2006, after Davis had been in custody

for 157 days, the State amended the information to include a

charge of armed robbery against James Peplow (count II) (720 ILCS

5/18-2 (2006)). The armed robbery against James arose from the

same set of circumstances as the armed robbery against Lou Ann.

That same day, Davis and two codefendants went to trial on both

counts. Davis was subsequently convicted of both counts and

sentenced to two nine-year terms, to run concurrently. Davis

appeals his conviction for armed robbery against James, arguing

that his counsel was ineffective for failing to move to dismiss

count II based on a speedy-trial violation. We affirm.

I. BACKGROUND

A. Underlying Offense

The victims, James Peplow and Lou Ann St. Onge, lived

together and were raising a young child together (Lou Ann's biological daughter). James and Lou Ann both worked at a Save-a-

Lot grocery store in Danville, Illinois. On May 26, 2006, James

dropped Lou Ann's daughter off at the babysitter's house on his

way to work. Lou Ann was already at work, and she was set to get

off of work earlier than James. At approximately 6:30 p.m., Lou

Ann's shift ended.

James and Lou Ann walked out to the parking lot to-

gether so that James could transfer Lou Ann's daughter's safety

seat from his car to her car, as Lou Ann wanted to pick up her

daughter from the babysitter's house on the way home from work.

James and Lou Ann had parked next to each other in the employee

section of the parking lot. Lou Ann sat in her car while James

started to remove the safety seat from his car. At that moment,

two men came up from behind James and demanded money.

At first, James did nothing because he was stunned and

did not immediately process what was happening. The taller of

the two men lifted his shirt and revealed a pearl-handled gun.

James gave the man who was not armed with the gun a $5 bill from

his pocket. After James gave the men the $5 bill, Lou Ann got

out of her car. Lou Ann testified that she had also seen the

gun, and was scared, but did not want anything to happen to

James. Lou Ann approached the men and said, "What's going on?"

In response, the two men demanded money from Lou Ann.

Lou Ann gave them a $1 bill. The two men searched Lou Ann's

pockets but could not find any additional money. Then, the men

searched James, taking $32 from his wallet, in the form of a $20

- 2 - bill, a $10 bill, and two $1 bills. In total, the men took $38

from James and Lou Ann, in the form of a $20 bill, a $10 bill, a

$5 bill, and three $1 bills.

Then, a green Ford Taurus drove by the scene and the

two men jumped in the car and drove away. James took note of the

Taurus's license plate, ran inside the store, wrote the plate

number on his hand, and called the police. The police arrived in

less than five minutes. The whole episode, from the time James

and Lou Ann left the store to the time the police arrived, took

approximately 10 minutes.

Soon after, Indiana police pulled over a vehicle

matching the description of the getaway car. The Indiana police

arrested the three occupants inside the vehicle, including Davis,

who was in the backseat. The other two men were later identified

as Andrew Guice and Donald Burnett. Davis had $38 on his person

in the same denominations that were taken from James and Lou Ann.

The police did not find a gun during the search of the vehicle,

but they did find a large, pearl-handled knife.

After his arrest, the police fingerprinted Davis and

found that the fingerprints matched an "Isiah Jones," not an

"Isiah Davis." James and Lou Ann were then brought into the

police station to make identifications through a closed circuit

television. Both James and Lou Ann identified codefendant Andrew

Guice as the man with the gun. James also identified codefendant

Donald Burnett, but he was not sure whether Burnett had been the

other man on foot or whether Burnett had driven the getaway car.

- 3 - Neither James nor Lou Ann identified Davis. At trial, James

thought Burnett had been the unarmed man on foot.

B. Procedure Impacting Speedy-Trial Requirements

On May 30, 2006, the State charged Davis with armed

robbery against Lou Ann and brought Davis into custody. Trial

was originally set for July 31, 2006. On July 31, 2006, Davis

moved to continue. The trial court granted the motion over the

State's objection. Trial was reset for September 25, 2006. On

that date, the State moved to continue and the trial court

granted the State's motion over Davis's objection. Further

proceedings were reset for October 30, 2006. On that date, the

State moved to amend the complaint to include Davis's alias,

"Isiah Jones." The parties then selected the jury. Trial was

set for November 2, 2006.

On November 2, 2006, after Davis had been in custody

for 157 days, the State again moved to amend the complaint, this

time seeking to add a second count of armed robbery regarding the

offense against James. The State noted that, for some reason, it

had originally only filed one count of armed robbery (as pertain-

ing to Lou Ann). The State was not sure why it originally did

not file another count as pertaining to James, as the crimes were

part of the same incident. The defense objected, arguing that

Davis and codefendants would be prejudiced by the addition of

count II because the jury had already been informed in the

statement of the case that there was only one count. The trial

court noted that the jury had already been informed that James

- 4 - would be a witness and all of the jurors indicated that they were

unfamiliar with James. Therefore, the trial court did not

believe Davis would be prejudiced by the addition of count II and

allowed the State to amend. The trial court gave defense counsel

the option of continuing the trial date so that he could have

more time to prepare to defend against count II, but defense

counsel said he and his clients were ready to go to trial that

day.

Following a joint jury trial, Davis was convicted of

both counts and was sentenced as stated. This appeal followed.

II. ANALYSIS

One hundred and fifty-seven days elapsed from the time

Davis was taken into custody (May 30, 2006) until his trial began

(November 2, 2006). As pertains to count I, both parties agree

that only 101 days counted toward the speedy-trial period because

Davis's requested continuance tolled the speedy-trial clock from

July 31, 2006, to September 25, 2006. However, as pertains to

count II, Davis argues that all 157 days should be counted toward

the speedy-trial period and that his trial counsel was ineffec-

tive for not moving to dismiss count II based on a violation of

the speedy-trial statute.

Every person in custody in Illinois for an alleged

offense shall be tried by the court having jurisdiction within

120 days from the date he was taken into custody. 725 ILCS

5/103-5(a) (West 2006). Delays occasioned by the defendant do

not count toward the 120-day speedy-trial period. 725 ILCS

- 5 - 5/103-5(a) (West 2006). In support of his argument that defen-

dant was not tried as to count II within the 120-day speedy-trial

period, Davis relies on People v. Williams, 94 Ill. App. 3d 241,

248-49, 418 N.E.2d 840, 846 (1981), which first set forth the

rule regarding speedy-trial considerations on later-filed

charges. The Williams court held:

"Where new and additional charges arise

from the same facts as did the original

charges and the State had knowledge of these

facts at the commencement of the prosecution,

the time within which trial is to begin on

the new and additional charges is subject to

the same statutory limitation that is applied

to the original charges. Continuances ob-

tained in connection with the trial of the

original charges cannot be attributed to

defendants with respect to the new and addi-

tional charges because these new and addi-

tional charges were not before the court when

those continuances were obtained." (Emphasis

added.) Williams, 94 Ill. App. 3d at 248-49,

418 N.E.2d at 846.

However, the Williams rule does not apply to situations

in which the State is not required to join the additional and

original charges in a single prosecution under the principles of

compulsory joinder. People v. Gooden, 189 Ill. 2d 209, 217-18,

- 6 - 725 N.E.2d 1248, 1253 (2000) (involving charges of home invasion

and aggravated criminal sexual assault). The Gooden court

reasoned that if the Williams rule were extended to situations

where the State would not otherwise be required to join the two

charges under the compulsory-joinder statute (720 ILCS 5/3-3

(West 2006)), the speedy-trial act (725 ILCS 5/103-5 (West 2006))

could improperly compel the State to join charges. Gooden, 189

Ill. 2d at 220, 725 N.E.2d at 1254. A defendant should not be

permitted to enlarge the reach of the compulsory-joinder statute

by means of the speedy-trial act. Gooden, 189 Ill. 2d at 220,

725 N.E.2d at 1254.

The compulsory-joinder statute states that if several

offenses of the defendant are known to the prosecuting officer at

the time of commencing prosecution and are within the jurisdic-

tion of a single court, they must be prosecuted in a single

prosecution if they are based on the same act (unless the court

determines that it is in the interest of justice to try one or

more of the charges separately). 720 ILCS 5/3-3(b) (West 2006).

An "act" for purposes of section 3-3 of the Criminal Code of 1961

(720 ILCS 5/3-3(b) (West 2006)) is "'any overt or outward mani-

festation that will support a separate offense.'" People v.

Davis, 328 Ill. App. 3d 411, 414, 766 N.E.2d 277, 280 (2002),

quoting People v. Crespo, 203 Ill. 2d 335, 341, 788 N.E.2d 1117,

1120 (2001).

The purpose of section 3-3 is to preclude successive

prosecutions where more than one person was injured by a single

- 7 - act by the accused, such as setting off an explosive. People v.

Mueller, 109 Ill. 2d 378, 386, 488 N.E.2d 523, 526 (1985). Under

the compulsory-joinder statute, whether a series of acts are

"related," or might be considered part of the same "conduct," is

irrelevant. See Mueller, 109 Ill. 2d at 385, 488 N.E.2d at 526;

see also People v. Limauge, 89 Ill. App. 2d 307, 231 N.E.2d 599

(1967) (though related, prosecutions for driving while license

revoked and for reckless homicide did not constitute same "act"

so as to require joinder). "'Section 3-3 is not intended to

cover the situation in which several offenses *** arise from a

series of acts which are closely related with respect to the

offender's single purpose or plan.<" Mueller, 109 Ill. 2d at

385-86, 488 N.E.2d at 526, quoting Ill. Ann. Stat., ch. 38, par.

3-3, Committee Comments, at 202 (Smith-Hurd 1972). In fact, the

drafters considered and rejected an earlier version of section 3-

3 which would have required a single prosecution when multiple

offenses arose from the "conduct," as opposed to the same "act."

Mueller, 109 Ill. 2d at 386, 488 N.E.2d at 526. "Conduct" may be

defined as a "series of acts." Mueller, 109 Ill. 2d at 386, 488

N.E.2d at 526.

It seems as though the Gooden court narrowed the scope

of the Williams rule. The Williams rule imposed the original

statutory limitations period to additional charges arising from

the "same facts." However, the Gooden court imposed the original

statutory limitations period to additional charges that are

required to be joined to the original charge, i.e., those arising

- 8 - from the same "act."

To prevail on an ineffective-assistance claim, a

defendant must show that (1) counsel's performance fell below an

objective standard of reasonableness, and that, (2) but for

counsel's unprofessional errors, the result of the proceedings

would have been different. People v. Reid, 179 Ill. 2d 297, 310,

688 N.E.2d 1156, 1162 (1997), citing Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). It has

been held that trial counsel's failure to move for a speedy-trial

discharge of new and additional charges will constitute ineffec-

tive assistance where there was at least a reasonable probability

that such a motion would have been granted. See People v. Davis,

373 Ill. App. 3d 351, 354, 869 N.E.2d 339, 341 (2007); see also

People v. Callahan, 334 Ill. App. 3d 636, 641, 644-45, 778 N.E.2d

737, 742, 745 (2002).

Hence, we must determine whether there was a reasonable

probability that a motion for a speedy-trial discharge of count

II would have been granted had such a motion been made. This

issue turns on whether the armed robbery of James (count II) is

based on the same "act" as the armed robbery of Lou Ann (count

I). If, on the other hand, the two counts arose from two dis-

tinct acts, the State would not be required to prosecute the two

counts in the same prosecution pursuant to the compulsory joinder

statute, and the Williams rule upon which Davis relies would not

apply. Gooden, 189 Ill. 2d at 217-18, 725 N.E.2d at 1253; 720

ILCS 5/3-3 (West 2006).

- 9 - What constitutes an "act" under the statute (i.e., any

overt or outward manifestation that will support a separate

offense) is not always clear-cut. For example, courts have held

that the rapid firing of successive shots from a single location

is a single "act" for purposes of the compulsory-joinder statute,

even if there are multiple victims. Davis, 328 Ill. App. 3d at

414, 766 N.E.2d at 80. However, other courts have held that

armed robberies against multiple victims, though contemporaneous

in time, may constitute separate acts. See People v. Smith, 42

Ill. App. 3d 109, 115, 355 N.E.2d 601, 606 (1976) (where defen-

dant and his accomplice walked into a barbershop and committed

armed robbery against two of the three people inside); People v.

Robinson, 41 Ill. App. 3d 526, 530-31, 354 N.E.2d 117, 121

(1976); People v. Boyce, 41 Ill. App. 3d 53, 61, 353 N.E.2d 287,

293 (1976) (in dicta, stating that the nearly simultaneous armed

robbery of two people in the same car constituted two "closely

related" acts).

Here, the perpetrators first committed an act of armed

robbery against James. Then, when Lou Ann got out of her car,

approached the defendants, and asked what was going on, the

defendants could have chosen to turn and run, or otherwise change

their course of action. Perhaps the defendants might have

realized that their actions were morally wrong and futile, or

that there were too many witnesses. Instead, the defendants

chose to commit a second act of armed robbery. Under these

circumstances, we find two different acts were committed. As

- 10 - such, any motion to dismiss the later-filed count II on the basis

of a speedy-trial violation would not have been successful and,

therefore, Davis's ineffective-assistance claim fails.

III. CONCLUSION

For the aforementioned reasons, we affirm the trial

court's judgment. As part of our judgment, we grant the State

its statutory assessment of $50 against defendant as costs of

this appeal.

Affirmed.

McCULLOUGH and TURNER, JJ., concur.

- 11 -