People v. Cross

2022 IL 127907

215 N.E.3d 953

465 Ill.Dec. 748

The PEOPLE of the State of Illinois, Appellee,

v.Latron Y. CROSS, Appellant.

Docket No. 127907

Supreme Court of Illinois.

Filed November 30, 2022

Rehearing Denied January 23, 2023

James E. Chadd, State Appellate Defender, Douglas R. Hoff, Deputy Defender, and Christopher G. Evers, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Michael L. Cebula, Assistant Attorneys General, of Chicago, of counsel), for the People.

CHIEF JUSTICE THEIS delivered the judgment of the court, with opinion.

¶ 1 This case presents an issue of whether a delay can be attributable to the defense for purposes of a speedy trial if the defendant's action does not result in the postponement of a pending trial date. Defendant Latron Y. Cross was convicted of first degree murder and sentenced to 59 years in prison. On appeal, he raised for the first time that he was not tried within 120 days of his arrest in violation of his statutory right to a speedy trial. Specifically, he argued that the trial court abused its discretion when it attributed 34 days of delay to defendant due to his delayed disclosure of his alibi defense, where his action did not alter the pending trial date, and that trial counsel was ineffective for failing to seek dismissal of the charges based upon the speedy-trial violation. The appellate court affirmed defendant's conviction, concluding that the Vermillion County circuit court did not abuse its discretion and that defendant received effective assistance of counsel. 2021 IL App (4th) 190114, ¶ 71, 451 Ill.Dec. 995, 184 N.E.3d 582. For the following reasons, we affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 On July 7, 2017, Ollie Williams was fatally shot while riding his bicycle in Danville, Illinois. Two days later, on July 9, 2017, defendant was charged with his murder and remained in custody through the time of trial. Following his arrest, a preliminary hearing was set for July 27, 2017. That interim period of 18 days was attributed to the State for purposes of calculating defendant's 120-day statutory speedy-trial term.

¶ 4 At the preliminary hearing, the trial court found that the State had established probable cause and ordered defendant to respond to the State's motion for pretrial discovery within 30 days. The State's motion requested, inter alia , written notice of any defenses defendant intended to assert at trial, the names and addresses of persons defendant intended to call as witnesses, and any relevant written statements.

¶ 5 Over the next year, defendant moved to continue the matter six times. The trial court granted the motions, each time attributing the delay of the speedy-trial term to defendant.

¶ 6 On July 16, 2018, the trial court conducted a pretrial hearing. Defense counsel answered ready for trial and demanded a speedy trial. The court set a trial date of September 24, 2018, and ruled that the 70-day period from July 16 to September 24 would be attributable to the State for purposes of calculating the speedy-trial term. The State acknowledged that, at that time, the speedy-trial term would run on October 27, 2018.

¶ 7 On August 21, 2018, one month before the trial date and a year after the State's motion for discovery, defendant filed a supplemental disclosure in which he raised an alibi defense for the first time. He identified Naomi Cross, defendant's grandmother, as an alibi witness and Steven Blaine, an investigator with the Vermilion County Public Defender's Office, as an additional witness. A report prepared by Blaine was also attached to the filing.

¶ 8 The State responded to defendant's alibi disclosure by filing a response to defendant's demand for a speedy trial. Therein, the State argued that the alibi would have been known to defendant for a year, that he was appointed counsel in July 2017, that the late disclosure would require the State to conduct further investigation, and that the defense had informed the State that additional witnesses and statements would be forthcoming and would need to be investigated. Based upon the change in posture of the case regarding a new defense theory and the totality of the circumstances, the State argued that the time from July 16 to September 24 should be a delay attributable to defendant for purposes of calculating the speedy-trial term.

¶ 9 On August 24, 2018, in response to the State's filing, the trial court conducted a hearing, at which the State reiterated its argument. Defense counsel reminded the court that defendant was ready for trial on July 16 and demanded a speedy trial. Counsel did not believe there was any delay attributable to defendant arising from the newly disclosed alibi. He noted that, because the trial date was still about one month out, the State had adequate time to investigate.

¶ 10 The court asked defense counsel whether he would have been able to proceed to trial without the newly disclosed evidence. Defense counsel responded that he had been ready to proceed with trial but that "[i]t would have been a different trial. I certainly would think this [alibi] information is valuable to me, however, on July 16th, we were ready to proceed, and we weren't going to be proceeding with an alibi."

¶ 11 After considering the arguments of the parties, the trial court determined that it would attribute the 36-day period from July 16 to August 21 to the State but would attribute the 34-day period from August 21—when defendant first disclosed his alibi defense—to September 24 as delay occasioned by defendant. The court indicated that the trial date set for September 24 remained as scheduled.

¶ 12 On September 24, 2018, the trial court inquired regarding the status of the case. Defense counsel acknowledged that the speedy-trial term had been tolled. He answered ready for trial and demanded a speedy trial. The State moved to continue the case. The prosecutor indicated that she had conversations with defense counsel about scheduling the case the week of November 5. She stated that "[i]t appears we agree that the speedy[-trial term] would run November 29th of 2018." She further informed the court that she had contacted her experts, who would be available that week, that defense counsel had tendered additional discovery, and that she had tendered supplemental discovery to defense counsel and had informed him of the circumstances regarding the State's expert.

¶ 13 The trial court set a new trial date of November 6, 2018. The court noted the State's motion to continue over the objection of defendant, who announced his readiness for trial, and indicated that the delay from September 24 to November 6 would be attributed to the State. Defense counsel did not object when the court set the November 6 trial date and did not object when the State indicated that the speedy-trial term would run on November 29, 2018.

¶ 14 Defendant's trial began on November 6, 2018. A jury found him guilty of first degree murder. He subsequently filed two motions for a new trial, which did not raise a speedy-trial violation. Both motions were denied. He was sentenced to 59 years in prison.

¶ 15 On appeal, defendant contended for the first time that his statutory speedy-trial rights were violated. He argued that the trial court abused its discretion when it attributed the 34 days from August 21 to September 24 to defendant for purposes of calculating the speedy-trial term and that his trial counsel was ineffective for failing to file a motion to dismiss based upon the violation. The appellate court held that the trial court did not abuse its discretion and that defendant received effective assistance of counsel. 2021 IL App (4th) 190114, ¶ 71, 451 Ill.Dec. 995, 184 N.E.3d 582. In so holding, the court determined that a trial date need not be moved for a delay of the speedy-trial term to be attributed to a defendant. Id. ¶¶ 84-89. To the extent that defendant relied on People v. Boyd , 363 Ill. App. 3d 1027, 301 Ill.Dec. 56, 845 N.E.2d 921 (2006), to support his contention that there is no delay unless a trial date is postponed, the court found that the statement of the law in Boyd is "incorrect, overbroad, and misreads the authority upon which it purports to rest." 2021 IL App (4th) 190114, ¶ 104, 451 Ill.Dec. 995, 184 N.E.3d 582. The dissenting justice would have found that the circuit court abused its discretion by attributing the 34 days to defendant because defendant's disclosure of his alibi witness did not result in a postponement of the trial date. Id. ¶ 158 (Cavanagh, J., concurring in part and dissenting in part).

¶ 16 We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2021).

¶ 17 ANALYSIS

¶ 18 At issue in this case is whether the trial court abused its discretion in attributing 34 days of delay to defendant because of his late disclosure of an alibi defense, even though the trial court did not postpone the scheduled trial date. In defendant's view, if a trial date has been set, a delay of the speedy-trial term can only be a delay occasioned by defendant if the scheduled trial date was postponed because of his actions. Under the procedural posture of this case, defendant acknowledges that he did not properly preserve the speedy-trial issue for review but requests that we review the purported error as either ineffective assistance of counsel for failing to file a timely motion raising the speedy-trial violation or, alternatively, as second-prong plain error.

¶ 19 To determine whether a defendant was denied the effective assistance of counsel, we apply the two-pronged test developed by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this court in People v. Albanese , 104 Ill. 2d 504, 526, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984). To prevail...