People v. Gay

Opinion

NO. 4-06-0010 Filed 12/28/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County ANTHONY GAY, ) No. 04CF13 Defendant-Appellant. ) ) Honorable ) Robert M. Travers, ) Judge Presiding. ______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In January 2004, the State charged defendant, Anthony

Gay, with two counts of aggravated battery (720 ILCS 5/12-4(b)(6)

(West 2000)). On March 3, 2004, defendant filed a speedy-trial

demand. After a November 2005 trial, a jury found defendant

guilty of aggravated battery. Defendant filed two posttrial

motions. At a joint December 2005 hearing, the trial court

denied defendant's motions and sentenced him to 6 years' impris-

onment to run consecutive to his sentences in 12 other cases.

Defendant appeals, contending (1) his speedy-trial

right was violated and (2) the trial court erred by failing to

hold an in camera questioning of two jurors on the names of their

friends who were correctional officers. We affirm.

I. BACKGROUND

Defendant was first sentenced to the Department of

Corrections (DOC) for seven years on a 1994 robbery conviction.

Since being imprisoned, defendant had accrued numerous

aggravated-battery convictions. In this case, case No. 04-CF-13 (case 13), the State charged defendant with aggravated battery on

January 20, 2004, for a January 23, 2001, incident, in which

defendant struck a correctional officer. When defendant was

charged in this case, he had 10 other pending aggravated-battery

cases in Livingston County, case Nos. 03-CF-59 (case 59), 03-CF-

60 (case 60), 03-CF-61 (case 61), 03-CF-62 (case 62), 03-CF-146

(case 146), 03-CF-172 (case 172), 03-CF-269 (case 269), 03-CF-298

(case 298), 03-CF-299 (case 299), and 03-CF-318 (case 318).

On March 3, 2004, pursuant to the intrastate detainers

statute (730 ILCS 5/3-8-10 (West 2004)), defendant made a pro se

demand for a speedy trial in cases 146, 172, 269, 298, 299, 318,

and 13. We note that, on July 1, 2003, defendant had made a

speedy-trial demand in cases 59, 60, 61, 62, and 146. On April

28, 2004, the trial court held a pretrial hearing on defendant's

pending cases, including this one. At that hearing, defendant's

fitness was questioned, and the court ordered a fitness examina-

tion in this case, the 10 original pending cases, and 2 newly

acquired cases, Nos. 04-CF-24 (case 24) and 04-CF-63 (case 63).

On May 26, 2004, the court entered a written order for an exami-

nation to determine defendant's fitness.

On January 12, 2005, Judge Harold Frobish entered a

case-management order due to the retirement of Judge Charles

Frank, who had presided over 21 cases involving defendant. The

order showed that, due to the unresolved issue of defendant's

fitness, sentencing remained pending in cases 60, 61, and 62, and

the other 10 cases, including this one, were still awaiting

- 2 - trial.

On February 2, 2005, in 13 cases, including this one,

defense counsel filed a motion for psychiatric examination, which

the trial court granted. After a March 16, 2005, fitness hear-

ing, the court found defendant fit to proceed on his pending

cases, and defendant discharged his attorney. At the hearing,

the court also set for June 8, 2005, a joint sentencing and

pretrial hearing on defendant's pending cases. On March 28,

2005, defendant filed a pro se motion for substitution of the

judge in all of his pending cases, which the court granted that

day and kept June 8, 2005, as the next hearing date. On April 7,

2005, defendant filed another motion to substitute the judge.

Three months later, the court heard the substitution motion and

denied it. The court set a hearing on all pending matters for

July 22, 2005.

On July 22, 2005, the trial court sentenced defendant

in cases 60, 61, and 62. On August 30, 2005, the court commenced

the trial in case 172. On November 1, 2005, the State announced

ready for trial in this case. At defendant's request, the court

set the trial for November 7, 2005. On November 7, 2005, the

court commenced defendant's trial in this case.

During voir dire, jurors Rients and Gibson indicated

they had friends that worked at the Pontiac Correctional Center

(Pontiac). When the trial court asked if the jurors would reveal

their friends' names, Gibson did not respond, and Rients declined

to disclose any names. Both jurors did indicate their friends

- 3 - were correctional officers. Defendant declared he wanted to know

the friends' names. The court asked the jurors if they knew

whether their friends had been involved in this particular

complaint or in the investigation of this type of thing, and the

jurors replied they did not really discuss it with them. The

court further asked the jurors if they were concerned about some

type of retaliation or problem against their friends if they sat

as jurors in this case, and both jurors responded in the nega-

tive. The court concluded defendant could ask about specific

names of people who might be a problem in this case but it would

not make the jurors reveal their friends' names. Defendant did

not respond, and the court had all of the potential jurors

removed from the courtroom.

Outside the jurors' presence, defendant indicated he

needed to know the friends' names because he had been accused in

21 cases and had 12 trials and naming 50 people would be too

difficult. Defendant needed to know the friends' names so he

could determine if they had been involved in or investigated any

of his cases. Defendant asked the two jurors to be excused for

cause, and the trial court denied his request. The jurors were

then returned to the courtroom, and defendant was allowed to

question them.

Defendant asked Rients and Gibson if the fact they

would not reveal their friends' names meant they thought he was

guilty, and they replied in the negative. Defendant then asked

the pair why they did not want to reveal their friends' names,

- 4 - and Rients replied because he did not think there was any reason

to bring their names into this case. At defendant's request, the

court read the names of the potential witnesses in this case, and

Rients and Gibson indicated they did not know any of those

people. The court also asked whether the fact their friends'

worked at Pontiac would affect their ability to be fair and

impartial, and the jurors responded in the negative. Defendant

then asked how long their friends had worked at DOC. Rients

responded he did not know, and Gibson said at least five years.

Both jurors indicated that, if the evidence showed defendant did

not commit the crime for which he was accused, they could find

him not guilty. Both jurors also indicated they were not worried

about their friends taunting them if the jury found defendant not

guilty.

After defendant concluded his questioning of Rients and

Gibson, he again asked they be excused for cause, and the court

denied his request. We note defendant had already exhausted his

peremptory challenges and did not request any additional ones.

The State accepted Rients and Gibson as jurors, and they were two

of the jurors that heard defendant's case.

At the conclusion of the trial, the jury found defen-

dant guilty as charged. On November 22, 2005, defendant filed a

motion for an arrest of judgment, challenging the wording of the

State's charges against him. He also filed a motion for a new

trial, asserting, inter alia, the trial court should have allowed

defendant to obtain the names of Rients's and Gibson's

- 5 - correctional-officer friends or excused them for cause. In

December 2005, the court held a hearing on defendant's motions

and sentencing. The court denied the motions and sentenced

defendant as stated. In addressing defendant's posttrial argu-

ment about jurors Rients and Gibson, the court noted two in-

stances in other cases were defendant had written letters to

jurors after the verdict. Thus, the court felt good reason for

caution existed. This appeal followed.

II. ANALYSIS

A. Speedy Trial

Defendant first asserts he was denied his speedy-trial

right because he was not brought to trial in case 172 in the

relevant speedy-trial period, which renders all of the other

cases included in his speedy-trial demand also untimely. The

State contends (1) this issue is not yet ripe because the appeal

in case 172 has not been decided, (2) defendant has forfeited

this issue, and (3) notwithstanding forfeiture, defendant's

speedy-trial right was not violated because he was tried within

160 days from the date the court sentenced him in cases 60, 61,

and 62. Defendant replied cases 60, 61, and 62 were not listed

in his March 2004 speedy-trial demand and thus cannot be consid-

ered in determining the speedy-trial period in this case.

1. Ripeness

The State first contends this issue is not ripe for

review because defendant's entire argument rests on this court's

decision on the appeal in case 172, which had yet to be decided.

- 6 - However, since the parties have filed their briefs, this court

has decided defendant's appeal in case 172. See People v. Gay,

No. 4-05-0915 (November 6, 2007), ___ Ill. App. 3d ___, ___

N.E.2d ____. Accordingly, defendant's argument is ripe for

review.

2. Forfeiture

The State also alleges defendant has forfeited his

speedy-trial challenge by failing (1) to invoke the intrastate

detainers statute, (2) to apply for discharge prior to his

conviction, and (3) to raise the speedy-trial issue in his

posttrial motion.

The State is correct (1) the intrastate detainers

statute applies to defendant since he was incarcerated in DOC

while his charges were pending (see 730 ILCS 5/3-8-10 (West

2004)) and (2) defendant was required to make his speedy-trial

demand in accordance with that statute as a precondition to the

running of the speedy-trial period (People v. Staten, 159 Ill. 2d

419, 428-29, 639 N.E.2d 550, 555 (1994)). However, it is incor-

rect the defendant failed to do that. The record shows defendant

was in DOC when he filed his March 2004 speedy-trial demand, and

he specifically indicated in the written demand that it was

pursuant to the intrastate detainers statute. Accordingly, we

find defendant properly invoked his speedy-trial right under the

intrastate detainers statute.

Further, as we stated in defendant's appeal in case

172, a speedy trial is a substantial, fundamental right, thus

- 7 - defendant's claim is reviewable under the plain-error doctrine

(134 Ill. 2d R. 615(a)) despite his failure to raise the issue in

the trial court. Gay, slip op. at 6, ___ Ill. App. 3d at ___,

___ N.E.2d at ____. Thus, we will review defendant's claim.

3. Merits

The intrastate detainers statute provides for the

application of subsections (b), ©), and (e) of section 103-5 of

the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS

5/103-5(b), ©), (e) (West 2004)). 730 ILCS 5/3-8-10 (West 2004).

Section 103-5(b) of the Procedure Code (725 ILCS 5/103-5(b) (West

2004)) requires an inmate to be tried within 160 days of the

defendant's speedy-trial demand. Section 103-5(e) of the Proce-

dure Code (725 ILCS 5/103-5(e) (West 2004)) provides, in perti-

nent part, the following:

"If a person *** simultaneously demands

trial upon more than one charge pending

against him in the same county, he shall be

tried *** upon at least one such charge

before expiration relative to any of such

pending charges of the period prescribed by

subsections (a) and (b) of this [s]ection

[(725 ILCS 5/103-5(a), (b) (West 2004))].

Such person shall be tried upon all of the

remaining charges thus pending within 160

days from the date on which judgment relative

to the first charge thus prosecuted is

- 8 - rendered ***."

Thus, when a defendant makes simultaneous speedy-trial demands on

multiple pending charges, section 103-5(e) tolls the speedy-trial

period for all but one of the charges until a judgment is

rendered on the first charge. A judgment is rendered on a charge

when the trial court has sentenced the defendant on that charge.

People v. Ike, 10 Ill. App. 3d 933, 933-34, 295 N.E.2d 250, 251

(1973).

In Gay, slip op. at 8-9, ___ Ill. App. 3d at ___, ___

N.E.2d at ___, this court concluded a judgment was rendered on

defendant's first charge for purposes of section 103-5(e) on July

22, 2005, when the trial court sentenced defendant in cases 60,

61, and 62. In so concluding, this court rejected defendant's

argument that cases 60, 61, and 62 should not be considered in

determining the speedy-trial period because defendant did not

include them in his March 2004 speedy-trial demand. See Gay,

slip op. at 9-10, ___ Ill. App. 3d at ___, ___ N.E.2d at ___.

Thus, under section 103-5(e) of the Procedure Code (725 ILCS

5/103-5(e) (West 2004)), defendant had to be tried in this case

within 160 days after July 22, 2005.

Here, defendant's trial commenced on November 7, 2005,

which was 108 days after July 22, 2005. Moreover, some of the

delay between July 2005 and November 2005 was attributable to

defendant. Accordingly, we find defendant was tried well within

the applicable speedy-trial period, and thus no violation

occurred.

- 9 - B. Questioning of Jurors

Defendant also asserts the trial court erred by failing

to hold an in camera questioning of jurors Rients and Gibson

about the names of their friends who were correctional officers

at Pontiac.

A defendant's right to a jury trial mandates a fair

trial by a panel of impartial jurors. People v. Gregg, 315 Ill.

App. 3d 59, 65, 732 N.E.2d 1152, 1157 (2000). Voir dire's

purpose is "to assure the selection of an impartial panel of

jurors free from either bias or prejudice." People v. Williams,

164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). The trial court

possesses the primary responsibility for both initiating and

conducting the voir dire examination, and the manner and scope of

that examination lies within that court's discretion. Williams,

164 Ill. 2d at 16, 645 N.E.2d at 850. Thus, defendant's argument

on appeal asserting the court should have further questioned two

jurors is a challenge to the trial court's discretion, not a

question of law as defendant contends.

This court will only find an abuse of discretion when,

after reviewing the record, we find the court's conduct "thwarted

the selection of an impartial jury." Williams, 164 Ill. 2d at

16, 645 N.E.2d at 850. In evaluating a court's exercise of

discretion during the voir dire, we examine "whether the

questions posed and the procedures employed have created

reasonable assurance that prejudice would be discovered if

present." People v. Sanders, 143 Ill. App. 3d 402, 405, 493

- 10 - N.E.2d 1, 3 (1986). "Reasonable limitations on voir dire do not

deprive a litigant of his right to an impartial jury." People v.

Tenney, 347 Ill. App. 3d 359, 368, 807 N.E.2d 705, 714 (2004).

Moreover, voir dire questions should confirm a prospective

juror's ability to set aside feelings of bias and decide the case

on the evidence presented. Tenney, 347 Ill. App. 3d at 368, 807

N.E.2d at 714.

We disagree with defendant the trial court needed to

obtain the names of Rients's and Gibson's friends who were

correctional officers to reasonably assure the discovery of any

prejudice. Here, the jurors in question both denied knowing

defendant and any of the witnesses in this case. They both

denied their relationship with correctional officers would cause

them to favor one side or the other and indicated they could be

fair and impartial. When asked if their friends had been

involved in bringing the complaint against defendant or involved

in that type of investigation, both jurors indicated they did not

really discuss those things with them. Moreover, Gibson denied

ever hearing stories about Pontiac, and Rients indicated he did

not discuss DOC business with his friends. Both jurors indicated

they neither feared retaliation against their friends nor worried

about their friends taunting them if the jury found defendant not

Since the two jurors stated they had not heard about

any incidents at Pontiac and did not know defendant or any of the

witnesses in this case, one can safely assume that, if Rients's

- 11 - and Gibson's correctional-officer friends had been involved with

defendant in another incident, Rients and Gibson were unaware of

it. Defendant fails to argue how he could possibly be prejudiced

by the jurors' friends' involvement in an incident with him if

the jurors were unaware of such an incident. We see no potential

prejudice. Accordingly, no further questioning was warranted on

the issue of Rients's and Gibson's correctional-officer friends

to assure the discovery of any prejudice. Thus, the trial court

did not abuse its discretion by failing to question the jurors in

camera about the names of their correctional-officer friends.

III. CONCLUSION

For the reasons stated, we affirm defendant's

conviction and sentence. As part of our judgment, we grant the

State's request that defendant be assessed $50 as costs for this

appeal. Affirmed.

COOK and STEIGMANN, JJ., concur.

- 12 -