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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earl ECHOLS, Defendant-Appellant.
    No. 1-15-3156
    Appellate Court of Illinois, First District, Third Division.
    July 18, 2018
    Michael J. Pelletier, Patricia Mysza, and John R. Breffeilh, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Haley Peck, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE COBBS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Earl Echols, appeals the denial of his motion to dismiss the indictment for aggravated driving under the influence of a controlled substance. Echols contends that he was denied his constitutional right to a speedy trial when the State failed to produce him for trial until one year after the offense was committed even though he was in State custody during that time. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On the evening of December 25, 2013, Echols was arrested after crashing his vehicle into a fire hydrant, several parked cars, and a building. At the hospital, Echols told the investigating officers that he had "smoked some PCP and passed out." Echols was charged with misdemeanor driving under the influence (DUI) of an intoxicant and appeared in court for his bond hearing the following day. On January 27, 2014, the court granted the State's motion for nolle prosequi and the misdemeanor charges were dropped. Counsel noted, during argument on the motion to dismiss, that it was unclear whether the public defender representing Echols informed him that the misdemeanor charge had been nol-prossed because the State intended to file felony charges at a later time.

¶ 4 Due to the misdemeanor arrest, Echols's probation from a prior offense was revoked on February 28, 2014. Four days later, he was transferred from the custody of the Cook County Sheriff to the Illinois Department of Corrections. On July 28, 2014, a grand jury indicted Echols on five counts of aggravated DUI. The State sent notice of the arraignment court date to Echols's last known address. On August 11, 2014, Echols was not present for arraignment. The State requested a three-week continuance to resend notice of a new court date after indicating that a copy of the indictment letter was missing from its file. At the next hearing on September 2, 2014, Echols was still incarcerated, had not received the notices, and as such did not appear. The court issued an arrest warrant and ordered Echols's bail forfeited based on the State's representations that it had sent proper notice to him of both court dates.

¶ 5 Echols remained in custody at Stateville Correctional Center until April 3, 2015. The day after completing his probation revocation sentence, Echols was arrested on the outstanding warrant in this case. He was arraigned on April 6, 2015, and attended a bond review hearing three days later. At the bond review hearing, the State noted for the record that standard operating procedure upon issuing a warrant includes running a computerized custody check. However, when the State ran a local, state, and federal custody check on September 2, 2014, the results failed to reveal Echols's incarceration on his probation revocation. Therefore, the court issued a $50,000 bond and set the next court date.

¶ 6 On April 16, 2015, Echols filed a motion to dismiss the charges arguing that his constitutional right to a speedy trial had been violated. The State tendered a written response the following month. On May 27, 2015, after hearing argument, the court denied the motion and proceeded to a bench trial. The bench trial was conducted over the course of two days and included testimony from two responding officers and stipulations as to the testimony of the eyewitness to the crash, the nurse who collected the DUI kit from Echols, and the forensic scientist who tested the DUI kit samples. Echols's urine tested positive for phencyclidine (PCP) and morphine. Additionally, vehicle records were entered into evidence showing that he owned the vehicle involved in the crash. The defense rested without presenting any evidence. After brief closing arguments, the court found defendant guilty on all five counts of aggravated DUI.

¶ 7 On October 2, 2015, the court denied Echols's motion for reconsideration or new trial and sentenced him to 18 months in the Illinois Department of Corrections with one year mandatory supervised release. The court noted that the five counts merged into one and denied Echols's oral motion to reconsider the sentence. This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, Echols contends that the trial court erred in refusing to dismiss the charges on constitutional speedy-trial grounds. Echols argues that the trial court should have dismissed the charges because there was a 477-day delay in prosecution, he was in State custody for a majority of that delay, the delay was not attributable to him, and he was prejudiced by the lost opportunity to serve concurrent sentences. The State responds that the record does not support finding a 477-day delay, the delay was caused by the State's reasonable belief that Echols was not in custody, and that Echols suffered no prejudice from the delay.

¶ 10 Both the federal and state constitutions guarantee the right to a speedy trial. See U.S. Const., amend. VI ; Ill. Const. 1970, art. I, § 8. The sixth amendment right to a speedy trial in the federal constitution is fundamental and is applicable to the states by the due process clause of the fourteenth amendment. See Klopfer v. North Carolina , 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). We note that, although there is a statutory right to a speedy trial in Illinois (see 725 ILCS 5/103-5 (West 2014) ), Echols only alleges a violation of his constitutional right.

¶ 11 Our supreme court has adopted the four-factor balancing test outlined in Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for considering whether a defendant's constitutional right to a speedy trial has been violated. People v. Bazzell , 68 Ill. 2d 177, 182, 11 Ill.Dec. 594, 369 N.E.2d 48 (1977). To determine whether a violation has occurred, we must balance (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Barker , 407 U.S. at 530, 92 S.Ct. 2182. No single factor is regarded as "a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533, 92 S.Ct. 2182. All the factors are related and must be considered along with other relevant circumstances in assessing whether a defendant's fundamental right to a speedy trial has been violated. Id. "[T]he ultimate determination of whether a defendant's constitutional speedy-trial right has been violated is subject to de novo review." People v. Crane , 195 Ill. 2d 42, 52, 252 Ill.Dec. 687, 743 N.E.2d 555 (2001). However, we will uphold the trial court's factual determinations unless they are against the manifest weight of the evidence. Id. at 51, 252 Ill.Dec. 687, 743 N.E.2d 555. Here, the facts are undisputed, and we review the matter de novo .

¶ 12 A. Length of Delay

¶ 13 The parties disagree on the length of time Echols was deprived of a speedy trial and whether the delay was sufficient to raise a constitutional question. Echols argues he suffered 477 days of delay from the offense date to the date he filed his motion to dismiss. The State contends that the delay was no more than 250 days commencing from either the issuance of the indictment or the arrest warrant to Echols's actual arrest on that warrant. To resolve this disagreement, we must determine the effect of nol-prossing charges on a defendant's constitutional right to a speedy trial.

¶ 14 1. The Effect of Nolle Prosequi

¶ 15 Echols contends that the six-month delay between the State's motion to nol-pros the misdemeanor charges and the subsequent felony indictment must be considered as a delay affecting his right to a speedy trial. The State responds that the speedy-trial right accrued either when Echols was formally indicted on felony charges or when the arrest warrant was issued.

¶ 16 "The right to a speedy trial guaranteed by the sixth amendment ( U.S. Const., amend. VI ) applies only within 'the confines of a formal criminal prosecution,' that is, once a defendant has been arrested or charged." People v. Totzke , 2012 IL App (2d) 110823, ¶ 19, 362 Ill.Dec. 887, 974 N.E.2d 408 (quoting Doggett v. United States , 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) ). Thus, the right to a speedy trial does not accrue until the defendant is accused. United States v. Marion , 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ; People v. Mitchell , 356 Ill. App. 3d 158, 161, 292 Ill.Dec. 230, 825 N.E.2d 1241 (2005). It is the actual restraint imposed on a defendant's liberty by arrest, formal indictment or information, and holding the defendant to answer the charges that engage the particular speedy-trial protections. Marion , 404 U.S. at 320, 92 S.Ct. 455 ; People v. Gimza , 56 Ill. App. 3d 477, 481, 14 Ill.Dec. 82, 371 N.E.2d 1135 (1977).

¶ 17 In Totzke , the Appellate Court, Second District addressed the effect of nolle prosequi in the context of a claimed speedy-trial constitutional violation. 2012 IL App (2d) 110823, ¶ 1, 362 Ill.Dec. 887, 974 N.E.2d 408. The defendant in that case was arrested and charged by complaint in January 2008 for resisting and injuring a police officer. Id. ¶ 3. After bonding out, she was formally charged by information, and the case was continued multiple times on motions by both parties. Id. ¶¶ 4-5. In February 2010, after the court denied the State's second motion to continue the trial date, the State moved to nol-pros the charges. Id. ¶¶ 5-6. In December 2010, the defendant was indicted for the same offense. Id. ¶ 7. The defendant moved to dismiss the charges claiming a lengthy delay in violation of her due process and constitutional right to a speedy trial. Id. ¶ 8. The trial court granted the motion on constitutional speedy-trial grounds. Id. ¶ 15.

¶ 18 On review, the appellate court found that the trial court erred in its application of due process and speedy-trial principles. Id. ¶ 37. The court observed that the effect of nolle prosequi in Illinois left no criminal charges pending against the defendant. Id. ¶ 23. Where no formal charges were pending, a speedy-trial analysis is inapplicable. Id. ¶ 25. "[A]ll of the time that the defendant is facing charges on the same matter" are, however, subject to a speedy-trial analysis. (Emphasis in original.) Id. ¶ 31. Accordingly, the appellate court calculated the length of delay from the defendant's initial arrest in January 2008 through her motion to dismiss on speedy-trial grounds, excluding the 285-day delay when no charges were pending. Id. ¶ 33. Thus, the court vacated the dismissal and remanded for reconsideration of the different periods of delay under the appropriate constitutional analysis. Id. ¶ 37.

¶ 19 Following the reasoning in Totzke , we determine that 295 days of delay elapsed between Echols's initial arrest and the date that he first moved to dismiss on constitutional speedy-trial grounds. Consistent with Totzke , our calculated length of delay excludes the 182 days between the misdemeanor nolle prosequi and the subsequent felony indictment.

¶ 20 2. Presumptively Prejudicial

¶ 21 The State argues that Echols's constitutional challenge should fail at the outset because the length of delay he suffered was not presumptively prejudicial. Generally, a speedy-trial inquiry is not triggered unless the complained-of-delay crosses the threshold from ordinary to presumptively prejudicial. Crane , 195 Ill. 2d at 52, 252 Ill.Dec. 687, 743 N.E.2d 555. Courts have recognized one year as the threshold. Id. at 52-53, 252 Ill.Dec. 687, 743 N.E.2d 555. Even so, a "presumptively prejudicial" delay does not imply that the one-year delay has actually prejudiced the defendant; it is only the point at which delay is deemed unreasonable enough to trigger a constitutional inquiry. Id. at 53, 252 Ill.Dec. 687, 743 N.E.2d 555. If a delay is determined presumptively prejudicial, the court must then continue its analysis and balance the remaining Barker factors. People v. Singleton , 278 Ill. App. 3d 296, 299, 214 Ill.Dec. 1014, 662 N.E.2d 580 (1996).

¶ 22 Here, by our calculation, Echols suffered a 295-day delay or approximately 10 months. This period of delay falls short of the one-year threshold for triggering a constitutional analysis. Generally, when the complained-of delay does not meet the threshold, a full Barker analysis is not warranted. See, e.g. , People v. Beard , 271 Ill. App. 3d 320, 328, 207 Ill.Dec. 655, 648 N.E.2d 111 (1995) (229-day delay insufficient to trigger full analysis); People v. Chambers , 258 Ill. App. 3d 73, 80, 196 Ill.Dec. 61, 629 N.E.2d 606 (1994) (a six-month delay is not presumptively prejudicial). We note however, that the Appellate Court, Second District has specified that a delay, which is nearing a year, is sufficient to trigger a full analysis of the remaining Barker factors. People v. Silver , 376 Ill. App. 3d 780, 784, 315 Ill.Dec. 609, 877 N.E.2d 96 (2007) ; People v. Lock , 266 Ill. App. 3d 185, 191, 203 Ill.Dec. 675, 640 N.E.2d 334 (1994). Similarly, federal courts addressing the same issue have found that delays ranging from 9 to 11 months are sufficient to trigger a more searching analysis. See, e.g. , United States v. Carrol , 228 F. App'x 605, 607 (7th Cir. 2007) ; United States v. White , 443 F.3d 582, 589-590 (7th Cir. 2006) ; United States v. Ward , 211 F.3d 356, 361 (7th Cir. 2000). Therefore, we consider defendant's 295-day delay sufficiently close to the one-year threshold to support our further examination of the other Barker factors.

¶ 23 B. Reason for Delay

¶ 24 Echols argues that the State has not provided justification for the 477-day delay. Echols contends that he did nothing to cause these delays and they are attributable to, and should weigh heavily against, the State. The State responds that there is no evidence that the State deliberately caused any delay in order to gain an advantage against Echols. Rather, the State contends that it performed its due diligence and the delay was justifiable.

¶ 25 We assign different weight to the reasons offered to explain the delay. Crane , 195 Ill. 2d at 53, 252 Ill.Dec. 687, 743 N.E.2d 555. It is the State's burden to justify any delay that has occurred. Id. Reasons, such as the unavailability or inability to locate a witness, despite diligent efforts, to secure testimony may be found valid and excusable, while others, such as the State's intentional delay to gain a tactical advantage, will be found wholly unacceptable. Id. at 53-54, 252 Ill.Dec. 687, 743 N.E.2d 555. In between diligent prosecution and bad-faith delays, there may be neutral reasons for a delay, which will still be attributed to and weighed against the State, such as a crowded court docket ( People v. Wills , 153 Ill. App. 3d 328, 336, 106 Ill.Dec. 207, 505 N.E.2d 754 (1987) ) or faulty police procedure, negligence, or incompetence ( Singleton , 278 Ill. App. 3d at 300, 214 Ill.Dec. 1014, 662 N.E.2d 580 ). These neutral reasons are weighed against the State more lightly than bad-faith delay but must still be given some weight. People v. Belcher , 186 Ill. App. 3d 202, 206, 134 Ill.Dec. 240, 542 N.E.2d 419 (1989). A defendant need only show that the delay was not attributable to his actions. People v. Prince , 242 Ill. App. 3d 1003, 1009, 183 Ill.Dec. 252, 611 N.E.2d 105 (1993).

¶ 26 As previously discussed, we determined that Echols experienced 295 days of delay rather than 477 days. These 295 days fall within three distinct time periods, which we will discuss separately in order to determine the validity of the State's reason for each period of delay. The first 33 days of delay commenced from the time of defendant's initial arrest and for the period leading up to and concluding with the State's nolle prosequi of the misdemeanor charges. In most circumstances, a decision to nol-pros a case will not be held against the State unless it was used to circumvent the defendant's statutory speedy-trial right or gain some tactical advantage. People v. Castillo , 372 Ill. App. 3d 11, 17-18, 309 Ill.Dec. 845, 865 N.E.2d 208 (2007). A decision to dismiss a case by nolle prosequi early in the proceedings and later refile charges arising from the same offense does not indicate bad faith or intentional manipulation by the State. See, e.g. , People v. Weddell , 405 Ill. App. 3d 424, 436, 345 Ill.Dec. 661, 939 N.E.2d 504 (2010) (the decision to refile identical charges after a nolle prosequi 78 days into the statutory speedy-trial term did not evince an attempt to manipulate the system); Castillo , 372 Ill. App. 3d at 19, 309 Ill.Dec. 845, 865 N.E.2d 208 (the decision to refile charges after a nolle prosequi 24 days into prosecution did not frustrate speedy-trial interests). Thus, the first 33 days of the 295-day delay do not weigh against the State, but neither are they attributable to Echols.

¶ 27 Next, there was a delay of 250 days between the formal indictment and Echols's arrest under the indictment. For 249 days of the 250-day delay, Echols was incarcerated in the Illinois Department of Corrections on an unrelated probation revocation sentence. The State erroneously believed that Echols was not in custody and had failed to appear to answer the charges.

¶ 28 The State attempts to justify this delay by asserting its reasonable reliance on the computerized custody check that informed its belief that Echols was not in custody. Further, the State suggests that Echols's criminal history, which reflected prior uses of aliases and false identifying information, contributed to the erroneous custody check results and therefore the reason for the delay should be weighed against Echols. We acknowledge that we have held the use of an alias, which actively interferes with the police's and the State's attempts to locate a defendant, creates delay attributable to the defendant. See People v. Rievia , 307 Ill. App. 3d 846, 853, 241 Ill.Dec. 674, 719 N.E.2d 1077 (1999). However, in this case, there was no evidence that Echols was charged in the present case or served his probation revocation under an alias. Thus, there is no reason to attribute the delay to Echols on the basis of his past behavior.

¶ 29 In Singleton , the State was found negligent in failing to prosecute the defendant for the four years following his formal indictment despite the fact that the defendant had entered state custody four times during the intervening period. 278 Ill. App. 3d at 297, 300, 214 Ill.Dec. 1014, 662 N.E.2d 580. Further, the State had initially prosecuted the defendant on other charges arising out of the same series of drug transactions but did not prosecute the charge at issue in the motion to dismiss. Id. Although the State argued that the delay in prosecution was attributable to the defendant because he became a "fugitive" and the State did not know where he was for 32 months, the court found that the State could not justify its failure to locate and prosecute defendant in a timely manner. Id. at 300, 214 Ill.Dec. 1014, 662 N.E.2d 580.

¶ 30 Similarly, we find that the State's failure to bring Echols before the court after he was indicted, despite his incarceration within the state of Illinois, constituted negligence attributable to the State. There is no contention that Echols was not actually in custody, nor did the State provide an explanation for the erroneous custody check. Thus, there is no valid justification for the 250-day delay between the indictment and subsequent arrest after Echols was released from state custody.

¶ 31 However, the lack of justification does not weigh heavily against the State. Our supreme court in Crane noted that tolerance of the negligence varies inversely with the length of the delay caused and its threat to the fairness of the defendant's trial. Crane , 195 Ill. 2d at 57, 252 Ill.Dec. 687, 743 N.E.2d 555 (citing Doggett , 505 U.S. at 657, 112 S.Ct. 2686 ). Our tolerance for some delay is due to the fact that the right to a speedy trial should always be in balance, and not inconsistent, with the rights of public justice.

Id. at 47, 252 Ill.Dec. 687, 743 N.E.2d 555 (citing Barker , 407 U.S. at 522, 92 S.Ct. 2182 ). The State attempted to locate Echols by contacting him twice at his last known address and performing a computerized custody check. Although the custody check returned erroneous results, there is no evidence of bad faith, and we will not heavily penalize the State for its failing.

¶ 32 Lastly, the 12-days between defendant's felony arrest and his motion for dismissal are not attributable to, nor do they weigh against, either party. This time period does not demonstrate a lack of diligence by the State in prosecuting Echols. Echols did not draw out the delay and promptly raised the issue by filing his motion to dismiss through counsel.

¶ 33 C. Assertion of Right; Waiver of Right

¶ 34 Having considered the reasons for the delay, we turn to Echols's assertion of his right to a speedy trial. The record reveals that Echols did not make a speedy-trial demand at any time before he filed his motion to dismiss. He nonetheless argues that this factor should weigh against the State because it had a duty to advise him of the charges while he was in State custody. He also argues, without citation to authority, that his motion to dismiss was an assertion of his right to a speedy trial.

¶ 35 We disagree. Typically, a failure to assert the right to a speedy trial weighs heavily against a defendant unless he or she was unaware of the charges. See Doggett , 505 U.S. at 653, 112 S.Ct. 2686 ; People v. Leavitt , 2014 IL App (1st) 121323, ¶ 88, 387 Ill.Dec. 385, 22 N.E.3d 430 ; Silver , 376 Ill. App. 3d at 785, 315 Ill.Dec. 609, 877 N.E.2d 96 ; Belcher , 186 Ill. App. 3d at 204, 134 Ill.Dec. 240, 542 N.E.2d 419. No evidence was presented that Echols was aware of the felony indictment before his arrest in April 2015. Under such circumstances, this factor is irrelevant to our consideration. See Leavitt , 2014 IL App (1st) 121323, ¶ 88, 387 Ill.Dec. 385, 22 N.E.3d 430 (collecting cases). We therefore conclude that defendant's failure to assert his right to a speedy trial weighs against neither party in this case.

¶ 36 D. Prejudice

¶ 37 Echols next argues that he suffered severe prejudice when he lost the opportunity to serve concurrent sentences for the aggravated DUI and his probation revocation. The State responds that without showing some manner of impact to his defense, Echols cannot demonstrate prejudice warranting dismissal of the charges.

¶ 38 In assessing whether the delay caused prejudice to the defendant, courts must consider the defendant's interests that the speedy-trial right was designed to protect: (1) preventing undue and oppressive pretrial incarceration, (2) minimizing the anxiety and concern that accompanies public accusations, and (3) limiting the possibility that the defense will be impaired. Barker , 407 U.S. at 532, 92 S.Ct. 2182. Both the Illinois and United States Supreme Court have considered the impaired-defense interest to be the most serious because a defendant's inability to adequately prepare his case " 'skews the fairness of the entire system.' " (Internal quotation marks omitted.) People v. Kaczmarek , 207 Ill. 2d 288, 299, 278 Ill.Dec. 329, 798 N.E.2d 713 (2003) (quoting Doggett , 505 U.S. at 654, 112 S.Ct. 2686 ).

¶ 39 As Echols was incarcerated due to an unrelated probation revocation during the claimed delay, we cannot say that he was subjected to undue and oppressive pretrial incarceration. Regardless of whether these charges were pending, he would have been incarcerated. Thus, the restraint on his liberty was not due to the State holding him to await trial in this case. Further, Echols cannot demonstrate any anxiety or concern about the pending charges because he was unaware of the indictment against him. Lastly, Echols did not present any argument that his defense was impaired by the delay. He did not lose access to any witnesses, there was no evidence that witness memories had faded, nor was any evidence lost during the intervening time.

¶ 40 Although we find that Echols was not subjected to undue and oppressive pretrial incarceration, we agree with Echols that a defendant who is already imprisoned can be injured by trial delay that prevents him from receiving a sentence at least partially concurrent with the one he was receiving. People v. Howell , 119 Ill. App. 3d 1, 7-8, 74 Ill.Dec. 734, 456 N.E.2d 236 (1983) (citing Smith v. Hooey , 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) ). "However, such a loss does not, per se, result in a denial of defendant's right to a speedy trial." People v. Harflinger , 49 Ill. App. 3d 31, 36, 6 Ill.Dec. 928, 363 N.E.2d 875 (1977) (citing Trigg v. Tennessee , 507 F.2d 949 (6th Cir. 1974) ). Both Howell and Harflinger are instructive.

¶ 41 In Howell , the defendant was arrested for rape in Illinois after escaping from federal custody in Florida. 119 Ill. App. 3d at 3, 74 Ill.Dec. 734, 456 N.E.2d 236. After being convicted and sentenced in 1970, he also escaped from Illinois state custody. Id. While a fugitive, the defendant was again arrested and convicted in Texas for robbery. Id. After being paroled in Texas, the defendant was transferred to federal custody to complete the original federal sentence he had previously evaded as well as his sentence for the Florida escape charge. Id. at 4, 74 Ill.Dec. 734, 456 N.E.2d 236. The State indicted the defendant for his escape from Illinois state custody in 1981 and sought to prosecute him after he was released from federal custody. Id. The defendant complained that his speedy-trial right was violated by the lengthy delay, the State's failure to seek extradition, and his lost opportunity to secure concurrent sentences. Id. at 5, 7-8, 74 Ill.Dec. 734, 456 N.E.2d 236. The court determined that the delay was not caused by the State's bad faith, the defendant failed to assert his speedy-trial right, and that the defendant's defense was not impaired in any manner. Id. at 9, 74 Ill.Dec. 734, 456 N.E.2d 236.

¶ 42 In Harflinger , the defendant was indicted in 1972 but prosecution did not begin until 1975, when he was paroled from federal custody and transferred to Illinois to answer the outstanding arrest warrants. 49 Ill. App. 3d at 33, 6 Ill.Dec. 928, 363 N.E.2d 875. The court acknowledged that there was a three-year delay during which the defendant could have secured concurrent sentences and the delay was attributable to the State's lack of due diligence. Id. at 35-36, 6 Ill.Dec. 928, 363 N.E.2d 875. However, the defendant did not assert his speedy-trial right, despite knowing about the pending charges, and suffered no prejudice in preparing his defense. Id. at 36, 6 Ill.Dec. 928, 363 N.E.2d 875.

¶ 43 In both Howell and Harflinger , the court held that the defendant's speedy-trial right was not violated despite the lost opportunity to secure concurrent sentences. Neither defendant addressed the primary concern under the speedy-trial analysis by demonstrating an impact on the ability to prepare his defense. Viewed in combination with the other Barker factors, the lost opportunity for concurrent sentences did not create significant prejudice to the defendants. Thus we acknowledge Echols's contention that his lost opportunity to secure a concurrent sentence demonstrates some prejudice to him, but we decline to find that it weighs heavily against the State without any evidence of impairment to his defense.

¶ 44 We acknowledge that the length of delay can affect the importance of finding prejudice to the defendant. Protracted delay can make it unnecessary for a defendant to show actual prejudice because excessive delay presumptively comprises a trial in way that neither party can identify or prove. Doggett , 505 U.S. at 656-58, 112 S.Ct. 2686 ; Silver , 376 Ill. App. 3d at 786, 315 Ill.Dec. 609, 877 N.E.2d 96. However, where, like in the instant case, the delay is less than one year, a more particularized showing of prejudice must be shown. Singleton , 278 Ill. App. 3d at 301, 214 Ill.Dec. 1014, 662 N.E.2d 580 ; Lock , 266 Ill. App. 3d at 192, 203 Ill.Dec. 675, 640 N.E.2d 334. Although we held that the overall 295-day delay was presumptively prejudicial and triggered a full Barker analysis, it was not so protracted as to relieve Echols from the burden of showing actual prejudice. Echols did not present evidence of a particularized prejudice impairing his defense and other interests protected by the speedy-trial right. Thus, neither the length of delay nor the prejudice resulting from the delay weighs heavily against the State.

¶ 45 E. Cases Cited by Echols

¶ 46 Defendant cites People v. Kilcauski , 2016 IL App (5th) 140526, 407 Ill.Dec. 107, 62 N.E.3d 352, as analogous to his case. The case is clearly distinguishable. In Kilcauski , the court found that dismissal was warranted after the defendant was voluntarily transferred by the sheriff's department in Illinois to Missouri without proper extradition, which caused over a year of delay in his prosecution. Id. ¶ 28. After the defendant was transferred out of state, the felony and misdemeanor charges against him were dismissed for failure to conduct a preliminary hearing and nol-prossed, respectively. Id. ¶¶ 6-7. We note there are many distinctions between the facts of Kilcauski and Echols's circumstances. First, the court found that defendant endured a lengthy period of pretrial incarceration because defendant had not been released from state custody before the transfer. Id. ¶ 34. Therefore, the time between dismissal of the charges and his subsequent indictment the following year was considered in the court's review of prejudice to the defendant. Id. ¶ 29. Second, the State had actual knowledge of the defendant's whereabouts both by its discussion with the sheriff's department and through the defendant's attempt to assert his right to speedy trial and inform the State of his circumstances. Id. ¶¶ 31-32. Third, the defendant presented evidence of actual prejudice, beyond the lost opportunity for concurrent sentencing, because he was unable to locate the only witness for his defense. Id. ¶ 33. Thus, all the Barker factors weighed in favor of the defendant in Kilcauski and on balance warranted dismissal of the charges.

¶ 47 Defendant's reliance on Belcher , 186 Ill. App. 3d 202, 134 Ill.Dec. 240, 542 N.E.2d 419, and People v. Bredemeier , 346 Ill. App. 3d 557, 281 Ill.Dec. 893, 805 N.E.2d 261 (2004), are equally unavailing. In Belcher , the appellate court found the length of the delay and the prejudice due to the length of the delay "were of such magnitude that [these two factors] overwhelmingly demonstrated" a violation of the defendant's right to a speedy trial. 186 Ill. App. 3d at 208, 134 Ill.Dec. 240, 542 N.E.2d 419. The court held that the 29-month delay and the State's lack of justification for the delay meant "it was unnecessary for defendant to show that he was prejudiced." Id. Bredemeier involved a delay in prosecuting a petition to revoke probation that is not subject to speedy-trial and did not rely on an analysis of the Barker factors for resolution. 346 Ill. App. 3d at 561, 281 Ill.Dec. 893, 805 N.E.2d 261.

¶ 48 III. CONCLUSION

¶ 49 Here, viewing the reason for delay in Echols's case in conjunction with the other Barker factors, the length of the delay was not extremely protracted and did not present a threat to the fairness of Echols's trial. At most, Echols lost the opportunity to serve a partially concurrent sentence. In our review, the prejudice suffered by Echols due to the State's delay in producing him for court on the felony charges does not, on balance, warrant a finding that his speedy-trial right was violated. As such, the trial court was correct in denying Echols's motion to dismiss. For the reasons stated, we affirm the trial court's denial of Echols's motion to dismiss on constitutional speedy-trial grounds.

¶ 50 Affirmed.

Justices Howse and Lavin concurred in the judgment and opinion.

      The building was empty at the time, and no one was physically injured by the crash other than Echols.

      It is unclear from the record whether Echols had been released from custody on January 27, 2014, and taken back into custody on February 28, 2014.

      Copies of these notices are not provided in the common law record; however, the report of proceedings indicates that copies were shown to the trial court prior the issuance of the arrest warrant.

      Approximately 16 months from December 25, 2013 to April 16, 2015.

      Approximately 7 to 8 months starting from either July 28, 2014, or September 2, 2014, to April 4, 2015.

      Approximately 10 months from December 25, 2013, to January 27, 2014, and July 28, 2014, to April 16, 2015.

      Approximately six months from January 27, 2014, to July 28, 2014.

      Echols further summarily argues that he suffered additional, unnecessary confinement totalling 216 days awaiting trial and sentencing in this case. We do not address this length of delay or the reasons for this delay in our review of whether the motion to dismiss, at the time it was considered, was improperly denied.

      The State cites an unpublished federal case (United States v. Smith , 1993 U.S. App. Lexis 39655, *11-12) in support of the proposition that its actions constituted due diligence.

      Although Echols does not argue a statutory speedy-trial violation, the issue of nolle prosequi is more commonly discussed under a statutory speedy-trial analysis because of its effect on tolling the speedy-trial period. See People v. Decatur , 191 Ill. App. 3d 1034, 139 Ill.Dec. 124, 548 N.E.2d 509 (1989). Here, the statutory speedy-trial analysis is helpful in determining the validity of State's justification for nol-prossing the misdemeanor charge and the weight to given to its reason.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew SLABON, Defendant-Appellant.
    No. 1-15-0149
    Appellate Court of Illinois, First District, FIRST DIVISION.
    August 20, 2018
    James E. Chadd, Patricia Mysza, and Michael Gomez, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Riebana E. Sachs, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Andrew Slabon, appeals his conviction of aggravated battery after a jury trial, for which he was sentenced to 50 months' imprisonment. On appeal, defendant contends (1) he was denied his right to present a defense where the trial court barred him from presenting testimony about his state of intoxication, barred him from cross-examining witnesses about his intoxication, and did not allow him to argue that his intoxicated state was relevant in determining whether defendant possessed the requisite mens rea for an aggravated battery conviction and (2) the trial court erred when it instructed the jury that voluntary intoxication was not a defense and refused to instruct the jury on the lesser-included offense of simple battery where he presented slight evidence that he did not know the person he kicked was a nurse. Defendant also requests that the clerk of the circuit court correct his mittimus to properly reflect the name and statutory citation of his convicted offense. For the following reasons, we affirm defendant's conviction and sentence and order the clerk to correct the mittimus to reflect a conviction for aggravated battery of a registered nurse pursuant to section 12-3.05(d)(11) of the Criminal Code of 2012 (Criminal Code) ( 720 ILCS 5/12-3.05(d)(11) (West 2014) ).

¶ 2 JURISDICTION

¶ 3 Defendant was sentenced on December 11, 2014. He filed a notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below ( Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014) ).

¶ 4 BACKGROUND

¶ 5 The following facts are relevant to this appeal. Defendant was charged with one count of aggravated battery for kicking Lauren Benjamin while she was performing her duties as a nurse. Defendant represented himself throughout the proceedings. Prior to trial, the State filed a motion in limine to prevent defendant from presenting a defense of voluntary intoxication. The State argued that Illinois law no longer recognizes such a defense because section 6-3 of the Criminal Code ( 720 ILCS 5/6-3 (West 2014) ), provides only that an intoxicated person may not be criminally responsible for conduct if "such condition is involuntarily produced." Defendant responded that he had no intention to use that defense and that his theory of defense was "that this never happened, this incident never occurred." However, he wanted to present a toxicology report indicating his high blood alcohol level at the time of the incident because "it has to do with why [he] was even in the hospital" and "has something to do with" the 'knowing' element of aggravated battery where he "did not voluntarily walk into this hospital." The court granted defendant time to research the issue and at a later hearing, defendant stated he had no objection to the motion. Before jury selection, defendant noted the motion in limine , but stated that while he was not raising voluntary intoxication as a defense, his intoxication was relevant to whether he possessed the requisite state of mind. The trial court stated that it would allow "[n]othing about voluntary intoxication, as it is not a defense in Illinois."

¶ 6 On January 27, 2014, Officer Angelo Sanchez and his partner, Officer James Mackin, were dispatched to 2644 North Mason Avenue in Chicago, Illinois, to conduct a possible death investigation. The officers entered the residence and noticed emergency personnel tending to a woman on the floor. Officer Sanchez observed defendant sitting on a couch about six or seven feet away, screaming hysterically, flailing his arms, and trying to get up. He tried to calm defendant down, but defendant did not respond. The officers moved defendant to another location in the house but he did not cooperate. For their safety as well as defendant's, the officers handcuffed him so they could transfer him to a bedroom.

¶ 7 After being moved, defendant kept trying to go back to the living room, and the officers unsuccessfully tried to calm him down. They called for backup, and Officers Jerry Adamski and David Cummens came to the bedroom. When defendant was informed that the woman was deceased, he continued to scream and said he wanted to kill himself. He yelled, "I can't believe this is happening. I can't believe that she is gone. I don't want to live anywhere." Concerned for defendant's well-being, Officer Sanchez called an ambulance for defendant pursuant to Chicago Police Department procedures. Defendant was still kicking and screaming when the ambulance arrived, and the officers did not want to upset him further so they decided to escort him out from the back of the house. Two firefighters, as well as Officers Adamski and Cummens, assisted defendant out to the ambulance. Defendant continued to state that he wanted to kill himself and he was taken to Our Lady of Resurrection Hospital.

¶ 8 Chicago Fire Department emergency medical technician (EMT) Morris Bishop testified that on January 27, 2014, he and his partner Quentin Strong responded to a psychiatric emergency at a residence.

They entered the residence and saw a woman lying on the floor. EMT Bishop heard a man, later identified as defendant, scream and curse in a back room. He watched defendant being escorted from the room, handcuffed. Defendant was belligerent. EMT Bishop attempted to take defendant's vitals and history in the ambulance, but defendant was very combative. Defendant continued to yell, jerk and kick on the way to the hospital. At the hospital, defendant was placed in a wheelchair and taken to the nurse's station. EMT Bishop could not recall defendant's exact words when he was yelling and screaming.

¶ 9 Officer Cummens testified that on January 27, 2014, he and Officer Adamski responded to a call for assistance. When they arrived, defendant was loud and upset, using profanity, and flailing his legs. After he learned the woman was deceased, he threatened "I don't want to live anywhere. Just kill me, I want to kill myself." Following police procedure, they called an ambulance for defendant and when it arrived, Officer Cummens escorted defendant through a rear door to the ambulance and rode with him and a paramedic to the hospital. While in the ambulance, defendant refused to lay down on the gurney or give any personal information. He told the EMT to "Go f*** yourself." Defendant was very angry during the ride and started kicking the gurney. At the hospital, Officer Cummens escorted defendant to the emergency room and at the main desk, Benjamin introduced herself as one of the nurses and offered defendant a glass of water. A doctor also introduced himself to defendant, who remained very agitated and refused to answer questions.

¶ 10 Officer Cummens accompanied defendant, Benjamin, other hospital personnel and a security guard to room number 7. Benjamin reintroduced herself to defendant, explaining that she was there to help him and needed to take his vitals. Defendant refused to lay down on the hospital bed and asked her if she was Jewish. Throughout defendant's cursing and belligerent behavior, Benjamin remained calm and professional. When she tried to take his vitals, defendant said, "Don't touch me, you dirty Jew. Leave me alone." The officers removed defendant's handcuffs so Benjamin could take his vitals but cuffed his wrists to the rails of the hospital bed. Defendant continued to yell profanities and insults at Benjamin as she put an oxygen mask on him, and he threatened to spit on people. Defendant's wrists and legs were eventually placed in soft restraints. Benjamin noticed that defendant's oxygen mask had slipped and went to readjust the mask. At this point, the soft restraints were on defendant's ankles only and had not been attached to the bed. As she adjusted his mask, defendant pivoted his hips, raised his knees to his chin, and kicked Benjamin in the middle of her chest with his feet. She flew backwards 12 or 15 feet and bounced off the counter. The officers handcuffed defendant and placed him under arrest. Benjamin returned to the room and continued to render care to defendant.

¶ 11 On cross-examination, Officer Cummens stated that he did not recall the exact words defendant used when he saw him in the bedroom but knew that defendant was yelling profanities. He did not recall whether defendant was unconscious at any point and denied telling defendant that he was "never going to see [his mother] again" and that "she'll have maggots crawling on her."

¶ 12 Dr. Kenneth Barrick testified that he was working in the emergency room at Our Lady of Resurrection Hospital on January 27, 2014, wearing scrubs and an identification badge, when he observed defendant brought in by two officers. Defendant was rocking back and forth, crying, and cursing. He tried to calm defendant, but defendant continued to rock back and forth, expressing disbelief over his mother's death and using "lots of curse words and expletives." Defendant was placed in room number 7 to isolate him from other patients in the emergency room due to his loud and aggressive behavior.

¶ 13 Dr. Barrick testified that Benjamin was assigned to defendant's care. She also wore scrubs and an identification badge. Benjamin introduced herself to defendant and told him she would be taking care of him. Defendant called her names and told her to "f*** off." Benjamin wanted to take defendant's vitals so personnel repositioned defendant's arms from behind his back to either side of the bed. Defendant continued to shout profanities at Benjamin and although Dr. Barrick tried to de-escalate the situation, defendant focused his aggressions on her. Dr. Barrick ordered physical restraints and chemical restraints consisting of benzodiazepine, Haldol, and Benadryl. Dr. Barrick stated that even after a second injection, defendant remained aggressive. He did not recall whether defendant made suicidal threats in his presence but was concerned about defendant being suicidal.

¶ 14 Dr. Barrick was present in the room when defendant was placed in soft restraints. Defendant's upper extremities were restrained first, and Benjamin began to secure his lower extremities by placing restraints on his ankles. She noticed, however, that defendant's oxygen was low, and she went to the head of the bed to adjust his oxygen mask. As she leaned over to place the mask on his face, defendant brought his knees up to his chest, turned toward Benjamin and kicked her in the chest. She flew back 8 to 10 feet and struck the cabinets behind her very hard. She stepped out of the room for a moment but returned about a minute later to take care of defendant. Dr. Barrick described Benjamin upon her return as "beyond calm."

¶ 15 On cross-examination, Dr. Barrick stated that he did not ask defendant if he knew where he was or what was going on, but based on defendant's response to his initial questions, Dr. Barrick concluded that defendant was lucid enough to understand his questions. Dr. Barrick smelled alcohol on defendant but when defendant asked whether he thought defendant was drunk, the trial court reminded defendant of its ruling that the evidence was not relevant because voluntary intoxication is not a defense in Illinois. The trial court also sustained objections to defendant's question whether alcohol may have contributed to his emotional distress and his attempt to question Dr. Barrick regarding his experience handling intoxicated patients.

¶ 16 Dr. Barrick further testified that when he first saw defendant, he conducted a patient assessment for which he drew blood and conducted a urine toxicology screen. The assessment revealed that defendant tested positive for cannabis and his blood alcohol levels were "244." The trial court sustained objections to defendant's question of whether the administered medications would react with alcohol and whether alcohol had something to do with defendant's behavior. Defendant replied that he was referring to his state of mind, and the trial court explained that voluntary intoxication is not a legal defense.

¶ 17 Benjamin testified that on January 27, 2014, she was working at the emergency department of Our Lady of Resurrection Hospital. She wore scrubs and a badge that identified her as a registered nurse. She observed defendant in a wheelchair, accompanied by two officers and two firefighters. Defendant appeared extremely agitated and was screaming profanities. She overheard defendant ask for a glass of water and she offered one to him. Since he was handcuffed, she held the cup for defendant while he drank. Defendant was taken to room number 7 and Benjamin was assigned to his case.

¶ 18 In the room, Benjamin introduced herself to defendant and told him she would be taking care of him. Two police officers, a hospital security guard, and Dr. Barrick were also in the room. She tried to take defendant's vitals, and defendant called her "a stupid Jew and a dirty b***." Defendant refused to answer any questions and continued to use profanities and insult Benjamin. She asked the officers to remove defendant's handcuffs so she could take his vitals, and they proceeded to restrain his hands to the side rails of the gurney instead. As they did so, defendant looked at Benjamin and said, "[D]on't touch me you dirty Jew. You're a f*** Jew. I know you're a Jew because your eyes are close together." Defendant continued to thrash around and call her names, and she could not take his vitals.

¶ 19 Defendant then made spitting sounds and threatened to spit on everyone in the room. A mask was put on his face but he pulled it down. Dr. Barrick ordered chemical restraints which are medications to help a patient relax when they are a danger to themselves or others. Benjamin administered the chemical restraints via injection in defendant's left thigh. Defendant then told her, "[D]o it again, b***." The injection did not appear to calm defendant. Benjamin then administered the physical restraints starting with defendant's wrists. As she did so, defendant said, "[D]on't touch me you stupid b***, f*** you, you f*** b***." After defendant's wrists were secured, Benjamin started to put restraints on defendant's ankles. Before she could do so, she noticed that his oxygen saturation level was dropping so she retrieved an oxygen mask and tried to put it on defendant. She leaned over him and as she placed the mask on his head defendant "pulled his knees into his chest, pivoted his hips and kicked [her] in the chest with both feet." She flew back 8 to 10 feet where she struck a counter and hit an oxygen cylinder before landing on her chest. She got up and left the room. She was in pain and felt scared, angry, and frustrated. However, she soon returned to room number 7 to continue defendant's treatment.

¶ 20 On cross-examination, Benjamin stated that she did not remove defendant's clothes nor was she in the room when they were removed. She testified that defendant's blood alcohol level was 0.244 and she knew he was intoxicated. She placed a catheter on defendant to obtain a urine sample and to ensure that he was not under the influence of drugs.

¶ 21 Defendant testified in his defense. He stated that on January 27, 2014, he was hysterical and crying when paramedics arrived to render aid to his mother. He recalled Officer Sanchez and that he felt "safe" around him and felt no "resentment towards anybody at that point." Defendant remembered being in his mother's room, lying on her bed, and looking up to see Officer Sanchez there. He asked the officer what was going on and the officer told him they were there to render aid to his mother. Defendant remembered being handcuffed and he could not stand. He stated that he "had been drinking that day" and "had been drinking for the whole year of 2013." Defendant then talked about how he began to drink on New Year's Eve of 2012, how 2013 "was pretty much a blur," and the State objected. The trial court sustained the State's objection.

¶ 22 Defendant testified that he remembered "being escorted out of the house-before that, I remember being sat down at the couch" and the paramedic told him that there was nothing they could do. Defendant started crying and became hysterical. He recalled being taken out of the house and that "we need to take you to the hospital, or something to that effect." They left out the back door, and he noticed that the door leading to his attic apartment "was wide open." He remembered "closing it before [he] left because [his] mom always closed the door, and it got cold for her. So [he] closed the door."

¶ 23 Defendant did not recall walking to the ambulance, but he remembered riding in the ambulance with the sirens on. The paramedic asked his name and "all of a sudden it kicked in why [he] was there. [He] realized that [his] mother had passed, and [he] started crying again." Defendant did not remember being taken out of the ambulance, but he recalled being in the emergency room and Dr. Barrick talking to him. Defendant said, "please, somebody, just euthanize me. Please put me out of my misery. I'm suffering here." He recalled being in room 7 and having a "dialogue with Officer Cummens." Defendant stated that the dialogue was not serious. They were going back and forth, with Officer Cummens calling defendant a "momma's boy" and that he "should man up." The officer called defendant a "p***" and defendant told Officer Cummens that he was "a parasite" and "a drain on taxpayers." Defendant testified that he was "trying to be intelligent about it" and did not call the officer names. He was no longer crying as the conversation "got [his] mind off what was going on."

¶ 24 At this point, Benjamin walked in and asked, "Who's a momma's boy?" Defendant responded, "Great. Look. A Jew." Defendant testified that when she walked in, he "didn't know [she] was Ms. Benjamin at that time. She never identified herself to [him] at that time." He and Benjamin continued back and forth, and defendant "didn't feel safe." He told Benjamin that she was overweight. Someone then said defendant needed to be restrained and he refused. He told them he did not "want to be restrained" and that he wanted to leave. He remembered that an officer and his partner were in the room. Although they did not speak to him, defendant recalled that Benjamin "was definitely antagonistic. She was going back and forth with [him.] She was not a professional nurse, and [he] did not feel like [he] was among professionals."

¶ 25 Defendant testified that Benjamin walked in with a syringe and a bottle and she injected him. He stopped moving while she injected the medicine "because if the needle [broke] in [his] leg, [it was] going to be an issue." He felt a little better after the injection so he asked Benjamin to "please give me another shot." She injected him again and defendant "was out." When he awoke, his clothes "were completely gone" and a tube was inserted into his penis. Officer Cummens said, "How do you feel, tough guy?" He told defendant that his mother was gone and he would never see her again. Defendant stated that he did not break out of the restraints.

¶ 26 On cross-examination, defendant stated that he recalled being at the hospital but also that at times he did not know whether he was at the hospital or in the emergency room. He did not recall Benjamin introducing herself to him, nor could he recall that she told him she was his nurse. He acknowledged that at certain points, [he] was probably aware of [his] surroundings." Defendant did not recall being transferred from a wheelchair to a gurney or kicking Benjamin in the chest. Defendant stated that he could not raise his legs to kick Benjamin because he was restrained.

¶ 27 During closing argument, defendant argued that he was "unreceptive" on that day due to the circumstances. He argued that he was "taken from [his] home, brought to a hospital, and [he] was injected with drugs, and at that time the State and the witnesses allege [he] kicked this nurse." He argued that "if a patient is not in control of his faculties and his psychological issues, how can that patient be responsible?" He claimed he could not have known the circumstances of that day in the hospital because of his severe emotional distress in finding his mother dead and his state of intoxication. The trial court sustained the State's objection, reminding defendant that voluntary intoxication was not a defense. The jury was also given Illinois Pattern Jury Instructions, Criminal, No. 24-25.02 (4th ed. 2000) (hereinafter IPI Criminal 4th), which stated that voluntary intoxication is not a defense. The trial court refused defendant's request to instruct the jury on the lesser included offense of battery, finding that the evidence established Benjamin was a nurse. After deliberations, the jury found defendant guilty of aggravated battery.

¶ 28 Defendant filed a motion for a new trial. He argued that the trial court's statement during cross-examination that voluntary intoxication is not a defense misled the jury to believe defendant's state of mind was not an issue. Also, defendant argued the trial court erred in giving IPI Criminal 4th No. 24-25.02 and in failing to instruct the jury on the offense of simple battery. The trial court denied defendant's motion and he was sentenced to 50 months' imprisonment followed by one year of mandatory supervised release. Defendant filed this timely appeal.

¶ 29 ANALYSIS

¶ 30 Defendant contends he was denied his right to argue at trial that he did not possess the requisite mens rea for aggravated battery, where the trial court found evidence of his state of intoxication irrelevant and barred him from presenting such testimony. A defendant has the right to present a defense and to present his version of the facts to the jury. People v. Manion , 67 Ill. 2d 564, 576, 10 Ill.Dec. 547, 367 N.E.2d 1313 (1977). However, the admissibility of evidence at trial is ultimately within the sound discretion of the trial court, and a reviewing court will not disturb the trial court's determination absent an abuse of discretion. People v. Illgen , 145 Ill. 2d 353, 364, 164 Ill.Dec. 599, 583 N.E.2d 515 (1991). An abuse of discretion occurs where the court's decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by the court. Id.

¶ 31 Defendant was charged with aggravated battery under section 12-3.05(d)(11) of the Criminal Code ( 720 ILCS 5/12-3.05(d)(11) (West 2014) ), which provides that a person commits this offense "when, in committing a battery," "he or she knows the individual battered to be" a "nurse while in the performance of his or her duties as a nurse." On appeal, defendant argues that he wanted to present evidence of his intoxication in order to show that, in his inebriated state, he did not know Benjamin was a nurse. The State, however, argues that the trial court correctly found this evidence irrelevant because voluntary intoxication is no longer a defense under Illinois law.

¶ 32 The State points to section 6-3 of the Criminal Code, which provides that "[a] person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." 720 ILCS 5/6-3 (West 2014). The State contends, pursuant to this provision, that a person in an intoxicated condition is not criminally responsible for conduct only if the condition is involuntarily produced. Our primary goal in interpreting a statute is to ascertain and give effect to legislative intent, expressed by the statute's plain and ordinary language. Lawler v. University of Chicago Medical Center , 2017 IL 120745, ¶ 12, 2017 WL 5893379. Where the statute's terms are clear and unambiguous, a court may not read into it exceptions, limitations, or conditions not expressed by the legislature. Id.

¶ 33 We agree with the State's interpretation and with its argument that because section 6 - 3 does not mention voluntary intoxication, that condition cannot be a defense to criminal conduct under the statute. This interpretation also corresponds with the general principle under Illinois law that "voluntary intoxication is not a defense to a criminal charge." People v. Redmond , 265 Ill. App. 3d 292, 302, 201 Ill.Dec. 937, 637 N.E.2d 526 (1994). We do not find, however, that the omission of voluntary intoxication in section 6 - 3 means this condition is never relevant in a criminal proceeding. Rather, a person's state of voluntary intoxication may be relevant in the commission of specific intent crimes, which "require proof of an additional special mental element." People v. Robinson , 379 Ill. App. 3d 679, 684, 318 Ill.Dec. 298, 883 N.E.2d 529 (2008). Courts have long recognized that "where voluntary intoxication is so extreme as to suspend entirely the power of reasoning," a defendant is incapable of forming a specific intent or malice. People v. Cunningham , 123 Ill. App. 2d 190, 209, 260 N.E.2d 10 (1970) (and cases cited therein). It follows that if aggravated battery is a specific intent offense, defendant's state of voluntary intoxication is relevant to negate that specific intent, even if it does not provide an affirmative defense against his criminal conduct.

¶ 34 Our appellate districts are split on whether aggravated battery is a specific intent offense. See People v. Conley , 187 Ill. App. 3d 234, 241, 134 Ill.Dec. 855, 543 N.E.2d 138 (1989) (listing cases showing the split and finding that inconsistent decisions exist within the First District). However, we need not decide the issue here because regardless of whether aggravated battery is a specific intent crime, the criminality of defendant's conduct depends on whether he acted knowingly or intentionally. People v. Phillips , 392 Ill. App. 3d 243, 258, 331 Ill.Dec. 641, 911 N.E.2d 462 (2009). The evidence presented at trial, including defendant's own testimony, shows that he had the requisite knowledge to commit aggravated battery under section 12-3.05(d)(11), notwithstanding his intoxicated state.

¶ 35 "Knowledge, due to its very nature, is ordinarily proven by circumstantial evidence, rather than by direct proof." People v. Smith , 124 Ill. App. 3d 243, 248, 79 Ill.Dec. 781, 464 N.E.2d 685 (1984). To prove knowledge by circumstantial evidence, the State must present sufficient facts from which an inference of knowledge can be made. In re Keith C. , 378 Ill. App. 3d 252, 260, 317 Ill.Dec. 165, 880 N.E.2d 1157 (2007). To convict defendant of aggravated battery under section 12-3.05(d)(11), the State must show that defendant kicked Benjamin knowing she was a nurse performing her duties. 720 ILCS 5/12-3.05(d)(11) (West 2014). Defendant argues that he did not know Benjamin was a nurse because she never introduced herself as such and, furthermore, he could not comprehend his surroundings or circumstances due to his compromised mental state. The evidence presented at trial contradicts defendant's claims.

¶ 36 Testifying for the State, Officer Cummens, Dr. Barrick, and Benjamin all stated that Benjamin introduced herself to defendant as a nurse who would be caring for him. They also testified that as Benjamin tried to put an oxygen mask on defendant, he pulled up his knees, turned his legs toward her chest and kicked her. Defendant contends he did not comprehend what was happening. However, he testified that he knew why the paramedics and officers were at his residence, he recalled being moved from a sofa to another room, and he recalled being led out of a back door to an ambulance. Defendant noticed that the door leading to his attic apartment "was wide open," and he remembered "closing it before [he] left because [his] mom always closed the door, and it got cold for her. So [he] closed the door." Defendant recalled riding in the ambulance and being in the emergency room of the hospital. He recounted in detail the dialogue he had with Officer Cummens, who called defendant a "momma's boy," and stated that he was "trying to be intelligent about it." He stopped crying as the conversation "got [his] mind off what was going on." He recalled talking with Dr. Barrick and cursing at Benjamin, calling her a "Jew." He stated that Benjamin "was not a professional nurse, and [he] did not feel like [he] was among professionals." Defendant recalled that she came in with a syringe and injected him, and since he felt a little better after the injection, he asked her for another one. Although he was agitated, defendant stopped moving while Benjamin injected the medicine "because if the needle [broke] in [his] leg, [it was] going to be an issue."

¶ 37 The detail and extent of defendant's recall show an acute awareness of his surroundings and disprove any notion that he did not know Benjamin was a nurse when he kicked her. People v. Madej , 106 Ill. 2d 201, 216-17, 88 Ill.Dec. 77, 478 N.E.2d 392 (1985) ; People v. Smith , 195 Ill. 2d 179, 195, 253 Ill.Dec. 660, 745 N.E.2d 1194 (2000). Defendant's conduct does not support his argument that he lacked "the mental state of knowledge" for aggravated battery due to his intoxication. People v. Weir , 111 Ill. 2d 334, 340, 95 Ill.Dec. 528, 490 N.E.2d 1 (1986). Given the overwhelming evidence of defendant's guilt, any error the trial court may have committed by barring evidence of his mental state of intoxication was harmless. See People v. Patterson , 217 Ill. 2d 407, 428, 299 Ill.Dec. 157, 841 N.E.2d 889 (2005).

¶ 38 Furthermore, defendant was not deprived from presenting his theory of defense. A defendant has the right to present a defense and to present his version of the facts to the jury. Manion , 67 Ill. 2d at 576, 10 Ill.Dec. 547, 367 N.E.2d 1313. At the hearing on the State's motion in limine , defendant stated his theory of defense was "that this never happened, this incident never occurred." He testified in his defense that after he received a second injection, he "was out." Defendant stated that he did not break out of the restraints. On cross-examination, he reiterated that he could not raise his legs to kick Nurse Benjamin because he was restrained. Defendant also testified that due to his extreme emotional distress, he was not always aware of his surroundings. He did not recall being transferred from a wheelchair to a gurney, or kicking Nurse Benjamin in the chest. Numerous State witnesses testified as to defendant's agitated, distressed state, and defendant was able to cross-examine witnesses about whether defendant appeared to know what was happening around him. Defendant also managed to present evidence that he had been drinking heavily, and that his blood alcohol level measured at .244. This evidence allowed the jury to consider defendant's version of the incident; therefore, he was not denied an opportunity to present crucial matters explaining his actions. Id. at 577, 10 Ill.Dec. 547, 367 N.E.2d 1313.

¶ 39 Next, defendant contends the trial court erred when it instructed the jury, over his objection, that "[a] voluntarily intoxicated condition is not a defense to the charge of aggravated battery." Defendant argues that the instruction is an inaccurate statement of the law, since voluntary intoxication can negate a specific intent, and it misled the jury into thinking "it could not consider [defendant's] intoxication at all." Whether to give a particular jury instruction is within the sound discretion of the trial court, and the court "does not abuse its discretion so long as, 'taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles.' " York v. Rush-Presbyterian-St. Luke's Medical Center , 222 Ill. 2d 147, 203, 305 Ill.Dec. 43, 854 N.E.2d 635 (2006) (quoting Schultz v. Northeast Illinois Regional Commuter R.R. Corp. , 201 Ill. 2d 260, 273-74, 266 Ill.Dec. 892, 775 N.E.2d 964 (2002) ). However, whether a jury instruction correctly states the law is a question we review de novo . People v. Pierce , 226 Ill. 2d 470, 475, 315 Ill.Dec. 656, 877 N.E.2d 408 (2007).

¶ 40 As we discussed above, "voluntary intoxication is not a defense to a criminal charge." Redmond , 265 Ill. App. 3d at 302, 201 Ill.Dec. 937, 637 N.E.2d 526. Also, although voluntary intoxication can negate specific intent, courts disagree on whether or not aggravated battery is a specific intent offense. In fact, a recent first district case found that aggravated battery was not a specific intent offense. See People v. Brown , 2015 IL App (1st) 134049, ¶ 44, 394 Ill.Dec. 373, 36 N.E.3d 306. Furthermore, the trial court's instruction did not inform the jury it could not consider defendant's intoxication at all, only that voluntary intoxication cannot be a defense to the charge of aggravated battery. We find that the trial court's instruction accurately stated the law.

¶ 41 The trial court also did not abuse its discretion in giving the instruction. Although the court did not allow defendant to present evidence of his intoxicated state as a defense to the charge of aggravated battery, it did allow evidence showing that he was intoxicated. Defendant testified that he had been drinking that day. Dr. Barrick testified that he smelled alcohol on defendant. He further testified that when he first saw defendant, he conducted a patient assessment for which he drew blood and conducted a urine toxicology screen. The assessment revealed that defendant tested positive for cannabis and his blood alcohol level was "244." Nurse Benjamin testified that defendant's blood alcohol level was 0.244 and she knew he was intoxicated. As such, "the State was entitled to an instruction that protected against adverse inferences which might have been drawn from" this evidence of intoxication. People v. Johnson , 110 Ill. App. 3d 965, 969, 66 Ill.Dec. 552, 443 N.E.2d 235 (1982).

¶ 42 Next, defendant argues that the trial court should have instructed the jury on the lesser-included offense of simple battery where defendant testified that he did not know Benjamin was a nurse. Defendant correctly points out that "[a]n instruction on the lesser-included offense is appropriate where the charged greater offense requires the jury to find a disputed factual element that is not required for conviction of the lesser-included offense." People v. Garcia , 188 Ill. 2d 265, 284, 242 Ill.Dec. 295, 721 N.E.2d 574 (1999). Such an instruction is proper where slight evidence exists that tends to prove the lesser-included offense rather than the greater. Id. at 284-85, 242 Ill.Dec. 295, 721 N.E.2d 574. The question is whether any evidence was presented at trial supporting this instruction.

¶ 43 Contrary to his argument on appeal, defendant did not testify at trial that he was unaware Benjamin was a nurse. Rather, he testified that when she walked in, he "didn't know [she] was Ms. Benjamin at that time. She never identified herself to [him] at that time." Defendant was referring to the fact that she did not tell him her name, not whether she was a nurse. The circumstantial evidence shows that defendant clearly knew Benjamin was a nurse. He never questioned why she was in his hospital room or why she was using a syringe to inject him with medicine. He even asked her to administer more medicine after he began to feel better from the first injection. When speaking of her during his testimony, defendant stated that Benjamin "was not a professional nurse, and [he] did not feel like [he] was among professionals" when he interacted with her. Throughout his testimony and his cross-examination of the State's witnesses, defendant never questioned her status as a nurse. "Where the evidence undisputedly satisfies the elements which distinguish aggravated battery from simple battery, no simple battery instruction is required to be given." People v. Krone , 98 Ill. App. 3d 619, 623, 54 Ill.Dec. 167, 424 N.E.2d 917 (1981).

¶ 44 Even if the trial court erred in refusing to instruct the jury on the offense of simple battery, a new trial is warranted only if defendant is prejudiced by the error. Dahan v. UHS of Bethesda, Inc. , 295 Ill. App. 3d 770, 777, 230 Ill.Dec. 137, 692 N.E.2d 1303 (1998). As discussed above, the overwhelming evidence presented at trial shows that defendant kicked Nurse Benjamin while knowing at the time that she was a nurse performing her duties. We find no reversible error here.

¶ 45 Finally, defendant argues that his mittimus should be corrected to reflect the proper offense of which he was convicted. Presently, his mittimus shows a conviction of aggravated battery pursuant to section 12-3.05(d)(5) ( 720 ILCS 5/12-3.05(d)(5) (West 2014) ), which refers to battery against a "judge, emergency management worker, emergency medical technician, or utility worker." The State agrees that the mittimus should be corrected to reflect defendant's conviction for aggravated battery of a registered nurse pursuant to section 12-3.05(d)(11) (id. § 12-3.05(d)(11) ). Therefore, we should order the clerk of the court to correct defendant's mittimus to reflect his conviction for aggravated battery under section 12-3.05(d)(11) of the Criminal Code.

¶ 46 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 47 Affirmed.

Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Julian B. DAILEY, Defendant-Appellant.
    No. 1-15-2882
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed September 4, 2018
    Michael J. Pelletier, Patricia Mysza, and Emily E. Filpi, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Leonore Carlson, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial in Cook County circuit court, defendant Julian B. Dailey was found guilty of possession of a controlled substance and sentenced to 30 months in prison. On appeal, defendant contends that the trial court erred when it denied his motion to quash arrest and suppress evidence because the police lacked "reasonable suspicion and probable cause" to stop defendant's van after witnessing one hand-to-hand transaction. We affirm.

¶ 2 Following his arrest on February 12, 2013, defendant was charged by information with the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, unlawful use or possession of a weapon by a felon, and possession of a controlled substance.

¶ 3 Prior to trial, defendant moved to quash his arrest and suppress evidence, alleging, in pertinent part, that police officers lacked probable cause to believe that defendant or anyone else in the vehicle had committed a crime "from within the vehicle." The matter proceeded to a simultaneous hearing on the motion and a bench trial.

¶ 4 Chicago police officer Thomas Carey testified that on February 12, 2013, he and two other officers were driving southbound when he saw a van that was stopped in the middle of the street. Carey watched a "male black citizen" run from the sidewalk to the driver's side window, hand the van's driver currency, and receive "small items" in return. The person who received the items looked in Carey's direction and then fled in one direction, while the van went in the other direction "at kind of a high rate of speed." Carey, who had been a police officer for 20 years, believed that he had observed a narcotics transaction. During his career he had observed several thousand such transactions.

¶ 5 Carey and his partners followed the van and curbed it. The driver, whom Carey identified in court as defendant, then exited the van. Carey had not ordered the driver to exit the vehicle. As defendant walked toward Carey, he stated " 'I ain't got shit.' " The officers exited their vehicle at the same time. As defendant continued to approach the officers, Carey observed a "marble-size object" drop from defendant's right hand and fall to the ground. Carey walked past defendant and picked up the object while another officer detained defendant. He described the object as a plastic bag that had seven smaller Ziploc Baggies containing suspect heroin. This item was subsequently inventoried. After defendant was placed in custody, Carey informed him of the Miranda warnings (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Defendant indicated that he understood his rights and then made a statement.

¶ 6 Defendant stated that his mother had just passed away and that he was trying to make some money to keep his buildings. Defendant further stated that he had "a drug case in the morning" and that his attorney told him to "do anything he could to stay out of trouble." Defendant also stated that he had "a gun by a garage" and asked whether the officers would let him go if he showed them the gun's location. Carey and his partners then followed defendant's directions to a certain backyard. There, defendant indicated that a gun was inside a grill. Carey exited his vehicle, walked over, reached through the fence, and opened a grill. Inside the grill was a loaded .45-caliber gun. Carey handed the gun to one of his partners and went to speak to the homeowner. Carey then took defendant into custody for the handgun. The handgun was subsequently inventoried. During a subsequent conversation, defendant was asked why he had the handgun. He indicated that "the Nashes were mad that he was making money and he was afraid they were going to pop him off."

¶ 7 During cross-examination, Carey testified that he observed a "very quick exchange" of "small items" and could not determine what the items were or their consistency. Although he saw currency being given to the driver of the van, he could not determine the amount. Carey acknowledged that he did not see any movement inside the van; rather, he observed defendant stick an arm out of the van and hand over small items. Carey did not recall speaking to a man named Lee Miller and denied that Miller gave him the handgun at issue. He never saw defendant in possession of a gun.

¶ 8 The parties stipulated that the contents of the bagged items recovered weighed 1.3 grams and contained heroin.

¶ 9 The defense then presented the testimony of Lee Miller, defendant's neighbor. Miller testified that he was sitting on his "buddy's porch," when an officer approached and asked him to drive defendant's van to Miller's house so that it would not be towed. Police officers then followed him to his house. As Miller parked the van, two officers approached him and told him to get out of the van and that defendant wanted to talk to him. Miller then went to speak with defendant, who was handcuffed in the back of a police car. Defendant asked Miller to take care of his van so that it would not be towed, and Miller agreed. A police officer then stated that defendant would be let go if officers could get "a gun off the street." Miller then walked, accompanied by two officers, to his home. There, he retrieved a gun from the attic and gave it to the officers. The gun did not belong to defendant, and defendant did not have access to it.

¶ 10 The trial court then denied defendant's motion to quash arrest as, "[l]ooking at it in its totality," "the circumstance of the officers' encounter with" defendant was not an "offense" to the fourth amendment. The court next stated that it had heard the evidence and found Officer Carey to be "a more credible and compelling witness" than Miller. The court then noted that the case concerned a "very unusual sequence of events" and concluded that it was "not exactly sure what happened with the gun" and "what kind of possession" defendant had. Therefore, the court gave defendant "the benefit of the doubt" with regard to the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, and unlawful use or possession of a weapon by a felon. However the court found that the bag of heroin belonged to defendant and, accordingly, found him guilty of possession of a controlled substance.

¶ 11 Defendant filed a motion for a new trial alleging, inter alia , that the trial court erred when it denied defendant's motion to quash arrest and suppress evidence. The trial court denied the motion and sentenced defendant to 30 months in prison.

¶ 12 On appeal, defendant contends that the trial court erred when it denied his motion to quash arrest and suppress evidence because Officer Carey lacked reasonable suspicion and probable cause to curb defendant's van. Defendant notes that Carey only saw one hand-to-hand transaction.

¶ 13 The fourth amendment to the United States Constitution provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. When a police officer stops a vehicle and detains its passengers, a "seizure" within the meaning of the fourth amendment has occurred. People v. Timmsen , 2016 IL 118181, ¶ 9, 401 Ill.Dec. 610, 50 N.E.3d 1092. "Therefore, a vehicle stop is subject to the fourth amendment requirement of reasonableness in all the circumstances." People v. Jones , 215 Ill. 2d 261, 270, 294 Ill.Dec. 129, 830 N.E.2d 541 (2005).

¶ 14 We analyze the reasonableness of traffic stops pursuant to the principles set forth in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, the parties agree that defendant was subjected to a Terry stop. "Pursuant to Terry , a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit, a crime." Timmsen , 2016 IL 118181, ¶ 9, 401 Ill.Dec. 610, 50 N.E.3d 1092. In order to justify a stop, "the officer must point to specific, articulable facts which, when considered with natural inferences, make the intrusion reasonable." People v. Simpson , 2015 IL App (1st) 130303, ¶ 23, 390 Ill.Dec. 614, 29 N.E.3d 546.

¶ 15 Under this reasonable suspicion standard, the facts necessary to justify a Terry stop do not need to rise to the level of probable cause and can be satisfied even if no violation of the law is observed, but the facts must go beyond a mere hunch. People v. Maxey , 2011 IL App (1st) 100011, ¶ 46, 350 Ill.Dec. 963, 949 N.E.2d 755. A police officer's decision to conduct a Terry stop is a practical one based on the totality of the circumstances. In re Elijah W. , 2017 IL App (1st) 162648, ¶ 36, 411 Ill.Dec. 867, 74 N.E.3d 176. A reviewing court applies an objective standard when deciding "whether the facts available to the officer at the time of the incident would lead an individual of reasonable caution to believe that the action was appropriate." People v. Colyar , 2013 IL 111835, ¶ 40, 374 Ill.Dec. 880, 996 N.E.2d 575.

¶ 16 In reviewing a trial court's ruling on a motion to quash arrest and suppress evidence, this court applies a two-part standard of review. People v. Grant , 2013 IL 112734, ¶ 12, 368 Ill.Dec. 205, 983 N.E.2d 1009. We accord great deference to the trial court's factual findings and will reverse them only if they are against the manifest weight of the evidence; however, we review the trial court's ultimate ruling on the motion de novo . Id.

¶ 17 Here, given the totality of the circumstances, the decision to stop the van that defendant was driving was proper under Terry . Carey, a police officer who had observed several thousand narcotics transactions during his 20-year career, testified that he observed a man run up to a van stopped in the middle of the street and exchange currency for "small items," then run away. Based upon these actions, Carey believed that he had observed a narcotics transaction, and officers then proceeded to follow and curb the van, which had driven away at a high rate of speed. See People v. Lomax , 2012 IL App (1st) 103016, ¶ 40, 363 Ill.Dec. 313, 975 N.E.2d 115 (noting that police officers are often required to make "split-second decisions, without the benefit of immediate hindsight" in tense and rapidly evolving situations). Moreover, once defendant's vehicle was curbed, defendant exited on his own accord without being instructed to do so by officers and then proceeded to drop a small object to the ground as he walked toward officers.

¶ 18 Although defendant is correct that Carey admitted that he could not determine exactly what the "small items" were, there is no requirement that Carey know that the items were definitely contraband or that he assign an innocent explanation to the exchange. See, e.g. , People v. Love , 199 Ill. 2d 269, 277, 263 Ill.Dec. 808, 769 N.E.2d 10 (2002) (concluding that innocent explanations for the defendant's pulling an item from her mouth and giving it to a man in exchange for money were "implausible," when "common sense dictates that the man probably did not go out at 1:50 a.m. in late January for prechewed gum"). Rather, the question is whether the facts "available" to Carey at the time would "lead an individual of reasonable caution to believe" that the stop was appropriate. See Colyar , 2013 IL 111835, ¶ 40, 374 Ill.Dec. 880, 996 N.E.2d 575.

¶ 19 In the case at bar, there were "specific, articulable facts" upon which Carey relied to justify stopping defendant, that is, a van was stopped in the middle of the road, an exchange of money for small items took place, and the parties involved immediately went their separate ways. See Simpson , 2015 IL App (1st) 130303, ¶ 23, 390 Ill.Dec. 614, 29 N.E.3d 546 (although "the facts forming the basis of reasonable suspicion" do not require an officer to actually observe a crime, the determination of reasonable suspicion must be based on commonsense judgments about human behavior). We therefore conclude that the trial court properly denied defendant's motion to quash arrest and suppress statements.

¶ 20 We are unpersuaded by defendant's reliance on People v. Ocampo , 377 Ill. App. 3d 150, 316 Ill.Dec. 286, 879 N.E.2d 353 (2007). In that case, an officer testified that a person was in a parked car at a gas station talking on a cell phone. The defendant walked up to the car, tapped on the trunk, and got in the front passenger seat. The driver and the passenger exchanged a look and had a short conversation, and the defendant moved as if he were taking something out of his pants pocket. The officer could not hear the conversation and did not see the defendant's hands. On appeal, the court found that those facts provided the officer with only a hunch of criminal activity, when although the defendant's actions were consistent with a drug transaction, they were also consistent with other innocent scenarios. Id. at 162, 316 Ill.Dec. 286, 879 N.E.2d 353. The court also noted that the testimony did not indicate that the police had any reason, other than the defendant's actions, to suspect criminal activity. Id. Rather, the police observed the defendant "purely by coincidence, not as part of a stakeout of a known drug-trafficking area." Id.

¶ 21 In the case at bar, defendant's van was not parked; rather, it was stopped in the middle of the street. Moreover, unlike Ocampo , where the defendant got into a car and then proceeded to have a conversation with another person, here, a man ran up to the van, exchanged money for small objects, and then immediately ran away. Additionally, unlike Ocampo , Carey actually observed the exchange.

¶ 22 We are similarly unpersuaded by defendant's reliance on People v. Petty , 2012 IL App (2d) 110974, 367 Ill.Dec. 429, 981 N.E.2d 1157. In that case, police officers observed as two cars parked at a gas station, and the drivers of both cars then exited their vehicles, engaged in a hand-to-hand transaction of "some unknown object or objects," and got back into their vehicles. Id. ¶ 3. Officers then stopped the defendant's vehicle, and cannabis was recovered.

The trial court denied the defendant's motion to suppress, finding that officers believed that they had witnessed a drug transaction. On appeal, the court relied on Ocampo to reverse, determining that the defendant's conduct was consistent with "any number of innocent scenarios," that the officers happened upon the defendant by coincidence, and that, other than the observed actions, the officers had no reason to suspect that criminal activity had occurred. Id. ¶ 17.

¶ 23 Petty is distinguishable on the basis that in the instant case Carey testified that he observed the hand-to-hand transaction and the fact that defendant's van was parked in the middle of the street rather than in a parking spot. Moreover, after the exchange, both parties rapidly left the area, that is, the man fled on foot, and defendant drove away "at kind of a high rate of speed."

¶ 24 Here, given the totality of the circumstances, Carey relied upon "specific, articulable facts" ( Simpson , 2015 IL App (1st) 130303, ¶ 23, 390 Ill.Dec. 614, 29 N.E.3d 546 ), as justification for the stop of the van. Considering the facts available to Carey at the time, we conclude that "an individual of reasonable caution" would believe that Carey's action was appropriate ( Colyar , 2013 IL 111835, ¶ 40, 374 Ill.Dec. 880, 996 N.E.2d 575 ) and, accordingly, the trial court properly denied defendant's motion to quash arrest and suppress evidence.

¶ 25 Having determined the officers had reasonable suspicion to conduct a Terry stop of defendant, we need not address his argument that the evidence obtained should be suppressed as the fruit of an unlawful stop.

¶ 26 Finally, this court has identified a troubling delay in this case.

¶ 27 This is a relatively simple case, and the chronology of events demonstrates the problems this court and defendant face in dealing with appeals in a timely manner:

Aug. 25, 2015: Finding of guilty, sentenced to 30 months in prison
Aug. 31, 2015: Notice of appeal (NOA) filed with clerk of the circuit court
Sept. 11, 2015: Clerk of the circuit court transmitted the NOA to the clerk of the appellate court; State Appellate Defender (SAD) appointed to represent defendant
Oct. 2, 2015: SAD notified of appointment
Oct. 15, 2015: NOA filed by clerk of the appellate court
Nov. 12, 2015: SAD motion to extend time to file the record to Jan. 4, 2016, granted; SAD has not yet received transcript; court reporter generally takes 7 months to get the transcript done
Nov. 18, 2015: SAD ordered report of proceedings
Dec. 9, 2015: Docketing statement filed
Jan. 6, 2016: SAD motion to extend time to file the record to Feb. 19, 2016; SAD has not yet received transcript; SAD expects it will be six more months before it receives the transcript; SAD expects the clerk of the circuit court will need two weeks to prepare the record
Jan. 14, 2016: SAD received record from clerk of the circuit court
Mar. 1, 2016: SAD motion to extend time to file record to May 2, 2016; SAD expects it will take four more months to get the transcript
Apr. 5, 2016: Certificate in lieu of record filed
May 10, 2016: SAD motion to extend time to file brief to July 12, 2016, granted; SAD very busy and expects 10 months before it gets to this case
July 13, 2016: SAD motion to extend time to file brief to Sept. 13, 2016, granted; SAD very busy and expects nine months before it gets to this case
Sept. 12, 2016: SAD motion to extend time to file brief to Nov. 15, 2016, granted (marked final); SAD very busy; expects seven months before it gets to this case
Apr. 10, 2017: Record filed
July 6, 2017: SAD motion to file brief instanter granted
Aug. 8, 2017: State's Attorney's office (SAO) motion to extend time to file brief to Oct. 10, 2017; SAO very busy (one full month after SAD filed its brief)
Oct. 12, 2017: SAO motion to extend time to file brief to Dec. 11, 2017, granted; SAO very busy
Nov. 16, 2017: SAD motion to supplement record with stipulation and certified copies of convictions granted
Dec. 13, 2017: SAO motion to extend time to file brief to Feb. 12, 2018 granted; SAO very busy
Mar. 30, 2018: SAO motion to file brief instanter granted; SAO very busy
Apr. 2, 2018: SAD notified clerk of the appellate court of defendant's civilian address; defendant no longer in prison
Apr. 9, 2018: SAD reply brief filed
Apr. 17, 2018: SAD motion to supplement record granted
Apr. 17, 2018: Original transcript, one volume, filed with clerk of the appellate court

¶ 28 We specifically add this chronology to illustrate the inordinate delay in addressing the merits of this appeal. On August 25, 2015, the trial court sentenced Julian Dailey to 30 months in prison on his possession of narcotics conviction, and his notice of appeal was filed on August 31, 2015. With credit for time served in pretrial custody (he was arrested on August 8, 2014), Dailey was eligible for release less than one year later on August 8, 2016. Dailey was subject to a one-year period of mandatory supervised release (MSR), which expired on August 8, 2017.

¶ 29 The certificate in lieu of the record was not filed until April 5, 2016, more than seven months after the trial court entered judgment and four months before Dailey's scheduled parole date. His opening brief on appeal was not filed until more than a year later, on July 6, 2017, or 11 months after Dailey's release from prison and one month before the expiration of his MSR term.

¶ 30 His reply brief was not filed until April 9, 2018, long after he had fully served his sentence. By the time this case was ready for this court to consider, there was no meaningful relief we could have provided had there been any merit in the issue Dailey raised on appeal.

¶ 31 This is not justice.

¶ 32 This case demonstrates the complete breakdown of justice caused in part by inefficiencies and in larger part by the failure of elected executive officials to assure that the State Appellate Defender, the State's Attorney, the clerk of the court, and the court reporter's office have the resources they need to prepare criminal cases quickly and effectively.

¶ 33 The clerk of the circuit court did not transmit the record to the State Appellate Defender until January 14, 2016, even though it was requested November 11, 2015. The State Appellate Defender ordered the transcript November 18, 2015, and the court reporter did not provide it-one volume-until sometime around May 10, 2016.

¶ 34 The State Appellate Defender cannot begin working on briefs until it has the common-law record and transcripts. The State's Attorney cannot begin working on briefs until it sees the brief filed by the State Appellate Defender and the record. Neither party can begin to do anything until the clerk of the court prepares the common-law record and the court reporter prepares the transcript.

¶ 35 And this court cannot do anything with the case until it is ready, that is, until the complete record, both briefs, and the reply brief are filed here. The defendant's Notice of Appeal was filed with the clerk of the circuit court on August 31, 2015. The certificate in lieu of the record was filed here on April 5, 2016, and the record on appeal was not transmitted to this court until April 10, 2017.

¶ 36 In this case we have specifically called attention to the State Appellate Defender's motions to extend time to file the record because it did not have the transcripts: November 12, 2015 (expect transcript to take seven months); January 6, 2016 (expect transcript to take about six months); March 1, 2016 (expect the transcripts to take another four months).

¶ 37 Then the State Appellate Defender filed four motions to extend time because the office was handling too many cases with too few attorneys: May 10, 2016, July 13, 2016, September 12, 2016, and then finally July 6, 2017, the brief was filed instanter . If the State Appellate Defender got the transcripts around May 10, 2016, which is when it filed its first motion to extend time to file the briefs (so, it must have had the transcripts), then it took 14 months for the State Appellate Defender to prepare the brief.

¶ 38 The State's Attorney filed four motions to extend time because that office was also handling too many cases with too few attorneys: August 8, 2017, October 12, 2017, and December 13, 2017, and then finally the State's Attorney filed its brief on March 30, 2018, instanter . It took the State's Attorney the better part of nine months to file its brief.

¶ 39 Under Illinois Supreme Court Rule 326 (eff. July 1, 2017) the record on appeal is due 63 days after the filing of the notice of appeal. Dailey's record was due November 3, 2015; the State Appellate Defender received the common-law record from the clerk of the circuit court on January 14, 2016, fully 2½ months after it was due.

¶ 40 This case demonstrates perfectly the slippery slope we see all too often. Once it became acceptable for every deadline to slide, the avalanche of missed dates was inevitable at every level. And, this case is actually on the low end of the typical delays we see in criminal cases. On average, it takes about one year for the clerk of the circuit court to transmit the record in criminal cases to our court. We have seen in this case how a huge part of the problem is the length of time it takes to get the transcripts from the court reporter.

¶ 41 We respectfully suggest that the Governor review the budget of the State Appellate Defender to assure that it is staffed appropriately. E-filing of documents will speed up the process of receiving the "paperwork," but it cannot, without sufficient staff, speed up the process of reviewing cases for appealable issues, drafting and preparing motions and orders, and preparing for and handling oral argument.

¶ 42 We ask the state budgeteers to assure that the court reporter's office has the resources necessary to transmit transcripts efficiently.

¶ 43 In addition, we ask the president of the county board and the board to take notice that, even with paperwork available through e-filing, there still needs to be sufficient personnel to read the material and write the motions and briefs and prepare for and handle oral argument. The State's Attorney's office is clearly stretched, resulting in situations like this one.

¶ 44 We suggest the State Appellate Defender review assignment protocols, where defendants with short sentences might be considered out of order.

¶ 45 Let us reiterate the core principle of our democracy: that justice requires a speedy resolution. Delaying appeals causes hardship on the defendant and his family; burdens the appellate court with the unenviable task of deciding cases after the defendant has served his time; may impact unnecessarily on the IDOC population headcount, resulting in unnecessary costs to taxpayers; and, in cases where the appealable issue leads to a reversal or remand, may deny the defendant of his most fundamental protected right: his liberty.

¶ 46 The judgment of the circuit court of Cook County is affirmed.

¶ 47 Affirmed.

Presiding Justice Mason concurred in the judgment and opinion.

Justice Walker specially concurred, with opinion.

¶ 49 I concur in the judgment reached by the majority opinion as well as its reasoning, but I take no part in the discussion in paragraphs 26 to 45. The discussion in those paragraphs is dicta and not essential to the disposition of the issues in this case.

      This situation is expected to improve for new cases under the e-filing mandates as the court reporters' use of digital equipment comes into use, but that will not help with hard-copy cases that are still in the pipeline.