SIXTH DIVISION
November 9, 2006
No. 1-04-3314
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
ADAN DELGADO, ) Honorable
) James Linn,
Defendant-Appellant. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
In 2004, a grand jury indicted defendant Adan Delgado for
the 1983 murder of Jaime Otero. The trial judge convicted Delgado
of voluntary manslaughter and sentenced him to seven years in
prison following a bench trial. On appeal, defendant contends
that the trial court should have dismissed the indictment due to
unreasonable preindictment delay, the evidence did not prove him
guilty beyond a reasonable doubt, his trial counsel provided
ineffective assistance, and the court imposed an improper
sentence. We remand to the trial court for completion of the
inquiry into preindictment delay, and we retain jurisdiction to
decide all issues following completion of that hearing.BACKGROUND
On October 1, 1983, Adan Delgado stabbed Jaime Otero in
front of a bar on Damen Street. Otero died from the wound. A few
days after the killing, Delgado went to Mexico, where his mother
lived and where he remained until he moved to California. On
October 16, 1983, the Chicago police department issued a warrant
for Delgado's arrest. In May of 1994, police arrested Delgado in
1-04-3314
San Bernardino, California, for a traffic offense. When they
discovered the 1983 warrant, the San Bernardino police contacted
officials in Chicago, who declined extradition.
On February 20, 2004, the Chicago police department assigned
Detective Salvador Esparza to investigate the circumstances
surrounding Otero's death. Esparza contacted Isabel Cruz, a
witness to the incident. After receiving word that Delgado might
be living in California, Esparza contacted the FBI task force. On
April 28, 2004, the task force arrested Delgado at his home in
Ontario, California. Delgado gave Esparza and a Cook County
assistant State's Attorney a videotaped statement in which he
claimed that he stabbed Otero in self-defense. Prosecutors then
obtained an indictment charging Delgado with murder.
Delgado moved to dismiss the indictment due to the excessive
delay between the crime and the indictment. At the hearing on
the motion, he argued that he had lost key defense witnesses
during the 20 years that had passed between the incident and the
trial:
"THE COURT: What is the prejudice to him?
MS. ROSS [Defense counsel]: Prejudice to him,
Judge, are the witnesses.
THE COURT: Who? Who did you lose?
MS. ROSS: Judge, there were witnesses there.
* * *
THE COURT: Can you name anybody?
-2-
1-04-3314
MS. ROSS: There was a name of one person in
particular I believe his name was Cohen who Mr. Delgado
was aware of who lived in the area. He has no further
name for him.
THE COURT: What is Mr. Cohen going to say?
MS. ROSS: Mr. Cohen is going to say there was a
fight and that was self defense, which is of course Mr.
Delgado's affirmative defense."
The trial judge denied Delgado's motion to dismiss the
indictment:
"THE COURT: *** I don't find that is a bad faith
manipulation of speedy trial rights.
He was stopped in California. He was not
extradited. Government acknowledged they didn't have
any witnesses. There is no statute of limitations in
murder. Only one bite the government will ever get at
the apple.
Taking advantage of the fact there is no statute
of limitations that they relocated some witnesses at
later time, I don't find this is some manipulation of
his rights to speedy trial act or anything of the
sort."
The court held Delgado's bench trial on September 13, 2004.
The trial judge found that Delgado believed, unreasonably, that
he needed to use deadly force to defend himself. Accordingly,
-3-
1-04-3314
the court found defendant guilty of voluntary manslaughter.
ANALYSIS
Defendant argues that the circuit court erred in denying his
motion to dismiss the indictment based on an unreasonable pre-
indictment delay of 21 years. The prosecution responds that
defendant has failed to satisfy the applicable test our supreme
court set forth in People v. Lawson, 67 Ill. 2d 449 (1977). Our
supreme court said:
"Where there has been a delay between an alleged crime
and indictment or arrest or accusation, the defendant
must come forward with a clear showing of actual and
substantial prejudice. Mere assertion of inability to
recall is insufficient. If the accused satisfies the
trial court that he or she has been substantially
prejudiced by the delay, then the burden shifts to the
State to show the reasonableness, if not the necessity
of the delay.
If this two-step process ascertains both
substantial prejudice and reasonableness of a delay,
then the court must make a determination based upon a
balancing of the interests of the defendant and the
public. Factors the court should consider, among
others, are the length of the delay and the seriousness
of the crime." (Emphasis in original.) Lawson, 67 Ill.
2d at 459.
-4-
1-04-3314
Both parties contend that we have the authority to apply the
Lawson test de novo. "[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 (2001). However, we will uphold the trial court's factual
determinations unless they are against the manifest weight of the
evidence. Crane, 195 Ill. 2d at 51.
"The task of judging when a delay has caused actual
prejudice, or whether the delay was reasonable, or which of the
competing interests outweighs the other in attempting to balance
one against the other, is a difficult duty." People v. Gulley,
83 Ill. App. 3d 1066, 1069 (1980). Ordinarily, in reviewing the
action of the trial court we would carefully examine the trial
court's application of each element of the Lawson test to
determine whether the trial court erred. Gulley, 83 Ill. App. 3d
at 1069. In this case, however, we cannot review the application
of Lawson because the trial court failed to apply it altogether.
The trial court in People v. Kennedy, 39 Ill. App. 3d 323
(1976), had to decide whether a lengthy preindictment delay
denied the defendant his right to due process. The court held
that the prosecutors violated the defendant's constitutional
right to a speedy trial and dismissed the indictment on that
basis. On appeal the defendant conceded that the right to a
speedy trial had no bearing on the case. He argued instead that
the trial court correctly found that he suffered prejudice due to
-5-
1-04-3314
the long delay between the offense and the indictment and,
therefore, the appellate court should affirm the dismissal of the
indictment. The appellate court noted that the trial court
purported to decide only the speedy trial issue. The court
concluded:
"A determination that defendant's due process right has
been violated involves issues of fact and it is
axiomatic that a reviewing court will not resolve
questions of fact.
Accordingly, the judgment of the circuit court ***
[is] reversed and the cause remanded for further
proceedings." Kennedy, 39 Ill. App. 3d at 325.
Following Kennedy, we remand for the trial court to make
appropriate findings for each step of the Lawson inquiry.
Defendant raises several other issues on appeal. In similar
circumstances, involving remand for completion of a factual
inquiry, some courts have limited the remand and delayed decision
on other issues.
In People v. Martinez, 317 Ill. App. 3d 1040, 1042 (2000),
the defendant objected when the prosecutor excused a black
venireperson because the venireperson regularly read a certain
newspaper. The trial court held that the prosecutor gave a race-
neutral explanation and on that basis overruled the defense
objection. The appellate court held that the trial court failed
to complete the proper analysis because the court "never
-6-
1-04-3314
evaluated, pursuant to the third step set forth in Batson [v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)],
the genuineness or persuasiveness of the State's proffered
reasons." Martinez, 317 Ill. App. 3d at 1045. The appellate
court remanded the cause to the trial court "for the limited
purpose of allowing the trial court to conduct the proper Batson
analysis." Martinez, 317 Ill. App. 3d at 1046.
Our supreme court has instructed us that when we remand for
further proceedings pursuant to Batson, we should retain
jurisdiction and announce our judgment on all issues following
the completion of the Batson hearing. People v. Garrett, 139
Ill. 2d 189, 194-95 (1990). We follow the same procedure here.
Thus, we retain jurisdiction in this case and we will announce
our judgment on all issues following the completion of the Lawson
inquiry. This opinion does not finally dispose of any issues.
CONCLUSION
Because the trial court failed to apply the proper Lawson
analysis in determining whether the preindictment delay of over
20 years violated defendant's due process rights, we remand for
application of Lawson. We retain jurisdiction, and we will
resolve all issues following completion of further proceedings in
the trial court.
Remanded with instructions.
FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.
-7-