NOTICE
2022 IL App (5th) 200400-U NOTICE
Decision filed 11/14/22. The
text of this decision may be NO. 5-20-0400 This order was filed under
changed or corrected prior to Supreme Court Rule 23 and is
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Marion County.
)
v. ) No. 19-CF-279
)
JERRY B. EZEBUIROH, ) Honorable
) Allan F. Lolie Jr.,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court.
Justices Welch and Vaughan concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court, where defendant’s right to a speedy
trial was not violated. Additionally, the court did not abuse its discretion by
allowing the State to elicit testimony about defendant’s aggressiveness as a prior
bad act, and defense counsel was not ineffective, where defendant failed to
demonstrate prejudice.
¶2 Defendant, Jerry B. Ezebuiroh, appeals his conviction and sentence after a jury in the
circuit court of Marion County found him guilty of aggravated battery of a correctional officer
(720 ILCS 5/12-3.05(d)(4) (West 2018)). While defendant’s case was pending, the Illinois
Supreme Court entered emergency orders in response to the COVID-19 pandemic, regarding
section 103-5(a) of the Code of Criminal Procedure of 1963 (Code), known as the Speedy Trial
Act (Act) (725 ILCS 5/103-5(a) (West 2020)). Defendant argues on appeal that he was denied his
statutory right to a speedy trial, where the Illinois Supreme Court and the chief judge of the Fourth
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Judicial Circuit lacked constitutional and statutory authority to suspend the operation of the
speedy-trial statute. Additionally, defendant argues that the court erroneously permitted the State
to elicit irrelevant and unfairly prejudicial testimony under Illinois Rule of Evidence 404 (eff. Jan.
1, 2011) that defendant previously behaved aggressively, and that defense counsel was ineffective
for failing to exercise a peremptory strike against a juror. For the following reasons, we affirm.
¶3 I. Background
¶4 We present only those facts necessary to our disposition of this appeal, which are as
follows. On July 29, 2019, the State charged defendant with the offense of aggravated battery of a
correctional officer, a Class 2 felony, whereby defendant, on July 27, 2019, without legal
justification, knowingly made physical contact of an insulting or provoking nature when defendant
grabbed and scratched Officer Cody Casner, a Marion County correctional officer engaged in the
execution of his official duties (720 ILCS 5/12-3.05(d)(4) (West 2018)). At the time, defendant
was incarcerated in the Marion County jail for the offense of domestic battery on a distinctly
separate case (No. 19-CF-134). The court appointed Attorney Craig Griffin to represent defendant
in the case at issue.
¶5 On August 20, 2019, the circuit court held a preliminary hearing where Officer Casner
testified to the following. On July 27, 2019, at approximately 7:05 p.m., a Marion County
correctional officer tased defendant, placed defendant in handcuffs, removed defendant from “D-
block,” and relocated him to a single solitary cell near the booking area in “R-4.” At approximately
7:40 p.m., Officer Casner approached defendant’s cell in the booking area to remove his handcuffs.
Officer Casner first “popped the chuck[ ]hole,” a small hatch between the inmate and guard, and
then requested defendant to “put his cuffs by the chuck[ ]hole *** to uncuff him.” Defendant
complied. He placed his back against the chuck hole to allow Officer Casner to remove his
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handcuffs. After Officer Casner uncuffed one of defendant’s hands, defendant pulled away from
him, pulling Officer Casner’s hands through the chuck hole and then grabbing Officer Casner’s
left hand. After the exchange, Officer Casner’s hands and arms were scratched, scraped, and
bloody.
¶6 After the circuit court found probable cause, defendant, represented by Attorney Griffin,
waived formal arraignment, demanded a jury trial, and requested an October 2019 setting. The
court set defendant’s jury trial for October 15, 2019.
¶7 On September 24, 2019, the circuit court held a pretrial hearing. At the outset of the
hearing, defendant, proceeding pro se, claimed that Attorney Griffin failed to listen to him on
multiple occasions and refused to file motions at defendant’s request. The court admonished
defendant that he was entitled to representation by counsel, but defendant was not entitled to
choose his public defender. Following admonishments, the court vacated Attorney Griffin’s
appointment.
¶8 On September 26, 2019, the State filed a motion in limine. The State requested the circuit
court proceed with the charge of aggravated battery, not the offense of domestic battery (No. 19-
CF-134), at the next available trial setting.
¶9 On October 3, 2019, defendant filed several pro se motions in the circuit court. In
particular, he filed a “Motion for Recruitment of Counsel,” because he was unable to afford private
counsel. Defendant, claiming he was disabled and had mental health issues, filed a motion
requesting the court appoint an expert to assist him in understanding the proceedings and in
communicating with his attorney. Due to a long history of mental health issues, defendant claimed
he was not receiving necessary medication while incarcerated.
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¶ 10 On October 3, 2019, the circuit court held a pretrial hearing. In referencing defendant’s
motions, the court stated the following:
“THE COURT: Now, the last time you were here though, sir, you told us that you
didn’t want an attorney. Now, today you are filing a motion telling me that you want an
attorney. Which way is it?
DEFENDANT EZEBUIROH: Because when it happened it happened so fast that I
couldn’t really concentrate with him asking me questions, so I don’t know how to answer
it at that period of time.
THE COURT: You understand if I were to grant the motion for counsel that it
would delay your jury trial which is scheduled for October 15th?
DEFENDANT EZEBUIROH: Yes, ma’am.
THE COURT: And that that delay would be attributed to you. And that’s a fancy
way of saying that you are the one that caused the delay, not the state’s attorney[’]s office.
Do you understand that?
DEFENDANT EZEBUIROH: Yes, ma’am.”
The court informed defendant it would re-appoint counsel to represent him. After defendant
affirmed that he understood, the court stated: “[A]gain, you understand that that will cause a delay
in your jury trial which is currently scheduled for October 15th?” Defendant acknowledged that
he understood. The court vacated the jury setting, re-appointed Attorney Griffin to represent
defendant, and confirmed that the record would show delay attributable to defendant.
¶ 11 On October 8, 2019, the circuit court held a pretrial hearing. At the outset, Attorney Griffin
requested a December 2019 setting for defendant’s jury trial with a pretrial hearing prior to the
start date. The court granted defendant’s request and reset defendant’s trial for December 14, 2019.
¶ 12 On November 19, 2019, defendant, represented by counsel, filed a motion requesting the
circuit court to appoint a psychiatrist or psychologist to evaluate his sanity at the time of the alleged
offense. That same day, the court held a pretrial hearing. At the hearing, Attorney Griffin requested
that the court appoint Dr. Daniel Cuneo to evaluate defendant. Attorney Griffin also requested that
the court continue defendant’s trial to January 2020, with the delay attributable to defendant.
Following the court’s admonishment, defendant acknowledged that he understood. Without
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objection by the State, the court granted defendant’s motion to continue, appointed Dr. Cuneo,
vacated the December 2019 setting, and set defendant’s jury trial for January 21, 2020.
¶ 13 On January 9, 2020, the circuit court held a pretrial hearing. At the hearing, Attorney
Griffin moved the court to continue defendant’s trial. The court admonished defendant that any
delay would be attributable to him. Defendant acknowledged that he understood. Without
objection by the State, the court granted defendant’s motion and reset his jury trial for February
10, 2020.
¶ 14 On January 28, 2020, defendant filed several pro se motions, including a motion for new
counsel and a “Motion for Recruitment of Counsel,” requesting, again, that the circuit court
appoint an expert to assist him, due to a disability, in understanding the proceedings and
communicating and cooperating with his attorney. Additionally, defendant filed a motion for a 30-
day continuance to hire legal representation.
¶ 15 On January 28, 2020, the circuit court held a pretrial hearing. At the hearing, defendant
informed the court that he wished to proceed pro se. After admonishing defendant that the court
did not find grounds for removing Attorney Griffin, the court advised against defendant’s decision
to proceed pro se. Despite this, defendant elected to proceed without counsel. The court, with both
parties present, confirmed that defendant’s jury trial was set for February 10, 2020. The court
vacated Attorney Griffin’s appointment.
¶ 16 On February 3, 2020, the State filed three motions in limine (second, third, and fourth
motions in limine). Relevant to this appeal, the State’s fourth motion in limine requested that the
circuit court bar defendant and any other witnesses from testifying to the events that occurred at
7:05 p.m. on July 27, 2019, prior to the alleged offense against Officer Casner. The State also
requested that the court bar defendant from questioning witnesses about the same events.
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¶ 17 On February 4, 2020, at the pretrial hearing, the circuit court acknowledged defendant’s
January 28, 2020, motion for a 30-day continuance. Defendant informed the court that he needed
additional time to hire an attorney. The following colloquy took place:
“THE COURT: *** Now, sir, you understand that you have a right to a speedy
trial?
DEFENDANT EZEBUIROH: Yes, sir.
THE COURT: And do you understand that if you delay this trial[,] it will not run
against your speedy trial rights? In other words, the delay will be charged to you which
means you will be held in custody for a longer period of time. Do you understand that?
DEFENDANT EZEBUIROH: Yes, sir.
THE COURT: And with that understanding, are you pursuing the motion to
continue?
DEFENDANT EZEBUIROH: For a 30[-]day continuance?
THE COURT: Yeah.
DEFENDANT EZEBUIROH: Yes, sir.
THE COURT: So[,] you understand that the 30 days will not run against your
speedy trial demand, delay will be to you?
DEFENDANT EZEBUIROH: Yes, sir.”
The court granted defendant’s motion to continue and reset defendant’s jury trial for March 9,
2020. The court informed defendant on the record: “[A]t some point in time you are either going
to have to produce an attorney or proceed pro se.” Defendant acknowledged that he understood.
¶ 18 On February 27, 2020, defendant appeared pro se at the pretrial hearing. The circuit court
granted defendant’s request to re-appoint counsel and re-appointed Attorney Griffin to represent
defendant. Defendant informed the court that he filed a civil suit against Attorney Griffin in federal
court. The court stated that “no one has been alerted to that, sir, so no one knows about that here.”
The court refused to reschedule defendant’s jury trial, informing him that his trial would start on
March 9, 2020. Defendant proceeded to state that he wanted a new attorney because he refused to
work with Attorney Griffin. After the court informed him that he could represent himself pro se,
hire his own private attorney, or work with Attorney Griffin, defendant accused the judge of
discrimination, calling the judge a “[r]acist mother f***er” and a “clan member.” The court found
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defendant in indirect civil contempt of court. The court vacated Attorney Griffin’s appointment
and appointed Attorney Emily Fitch.
¶ 19 The circuit court held a pretrial hearing on March 4, 2020. At the outset of the hearing,
Attorney Fitch moved to continue defendant’s jury trial, requesting additional time to prepare.
After much back and forth between the court and defendant, defendant agreed to the continuance,
and the court rescheduled his jury trial to April 14, 2020.
¶ 20 On March 17, 2020, in response to the COVID-19 pandemic, the Illinois Supreme Court
entered an order directing courts to implement “temporary procedures to minimize the impact of
COVID-19 on the court system,” stating that “[e]ssential court matters and proceedings shall
continue to be heard by the Illinois courts.” Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). Three days
later, on March 20, 2020, the Illinois Supreme Court issued a second supervisory order authorizing
chief circuit court judges to continue trial dates for the next 60 days and until further order of the
court. Ill. S. Ct., M.R. 30370 (eff. Mar. 20, 2020). The order of the Illinois Supreme Court on
March 20, 2020, specifically noted that any delay resulting from the emergency continuances
“shall not be attributable to either the State or the defendant for purposes of section 103-5 of the
Code.” Id.
¶ 21 On March 27, 2020, defendant filed a motion in limine, requesting that the circuit court
prohibit the admission of any and all evidence or testimony of defendant’s prior convictions at
trial. That same day, defendant filed a second motion in limine, requesting the court to enter an
order barring the State and any of its witnesses from referencing or introducing any evidence on
the basis of defendant’s incarceration in the Marion County jail for the offense of domestic battery
(No. 19-CF-134).
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¶ 22 On March 30, 2020, the chief judge of the Fourth Judicial Circuit entered an administrative
order, in accordance with the Illinois Supreme Court’s March 20, 2020, order (Ill. S. Ct., M.R.
30370 (eff. Mar. 20, 2020)), continuing all civil and criminal jury trials until May 23, 2020, or
until further order by the Illinois Supreme Court without this delay attributable to the State or
defendants. In response, on March 31, 2020, the circuit court of Marion County continued
defendant’s jury trial due to an administrative order entered by the chief judge of the Fourth
Judicial Circuit, as a result of the COVID-19 pandemic. The court reset defendant’s jury trial for
June 8, 2020.
¶ 23 On April 3, 2020, the Illinois Supreme Court amended the March 20, 2020, order to allow
circuit courts to continue trials until further order by the court with no delay attributable to the
State or defendants. Ill. S. Ct., M.R. 30370 (eff. Apr. 3, 2020). Four days later on April 7, 2020,
the Illinois Supreme Court amended its March 20, 2020, and April 3, 2020, orders, stating that the
“continuances occasioned by this Order serve the ends of justice and outweigh the best interests
of the public and defendants in a speedy trial.” Ill. S. Ct., M.R. 30370 (eff. Apr. 7, 2020). The court
further stated that “such continuances shall be excluded from speedy trial computations contained
in section 103-5 of the Code ***. Statutory time restrictions in [the Act] *** shall be tolled until
further order of this Court.” Id.
¶ 24 On May 21, 2020, the circuit court, over defendant’s objection, vacated his June 8, 2020,
jury trial setting, pursuant to the supervisory and administrative orders issued with regard to the
COVID-19 pandemic. The court reset defendant’s trial for July 13, 2020.
¶ 25 On July 2, 2020, the circuit court held a pretrial hearing. The parties confirmed that
defendant’s jury trial was set for July 13, 2020, and Attorney Fitch informed the court of her
intention to file a motion regarding defendant’s speedy trial rights.
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¶ 26 On July 7, 2020, defendant filed a “Motion for Discharge and Dismissal,” arguing that he
neither asked for, approved, or agreed to many of the continuances from September 24, 2019,
through March 4, 2020, nor the continuances on March 31, 2020, and May 21, 2020, due to the
administrative orders. Defendant asserted that, “[r]egardless of whether some of these
continuances were or should have been attributed to the Defendant, the fact remains that more than
120 days have passed since Defendant was arrested, excluding time attributable to the Defendant.”
Defendant argued that the various administrative orders exceeded the judiciary’s constitutional
and statutory authority, effectively making new law by suspending the speedy-trial statute.
Defendant argued that the continuances entered in accordance with the administrative orders
should be counted against the State. Defendant also requested his release from custody instanter,
and that the circuit court dismiss with prejudice the charge against him for the offense of
aggravated battery of a correctional officer. Additionally, the State filed its fifth motion in limine
on July 7, 2020, requesting that the court allow the State to read into evidence Officer Casner’s
August 20, 2019, sworn testimony, since Officer Casner was an active-duty armed serviceman and
unavailable to testify. The court granted the State’s motion without objection.
¶ 27 On July 9, 2020, the circuit court held a hearing on defendant’s motion for discharge and
dismissal on speedy trial grounds. At the hearing, Attorney Fitch rested on the defense’s motion,
offering no additional argument before the court. The State, in response, stated that the need for
the adminstrative orders “was beyond our control. We were ordered not to have trials.” The State
maintained that, although it had no case law to argue, given the COVID-19 pandemic caused new
issues in the court system, the Illinois Supreme Court appropriately exercised its power by entering
a supervisory order. The court denied defendant’s motion.
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¶ 28 The circuit court held defendant’s two-day jury trial on July 14, 2020, and July 15, 2020.
At the outset of the trial on July 14, 2020, the State informed the court that it offered defendant a
plea deal. Specifically, the State offered defendant two years in prison with credit for time served
in exchange for defendant’s plea of guilty to a Class 4 felony. Defendant rejected the State’s offer.
The court then proceeded to voir dire.
¶ 29 During voir dire, and relevant to this appeal, the circuit court inquired if any prospective
jurors knew Officer Casner. Prospective juror Autumn Respondek indicated that she was best
friends with Officer Casner’s sister. Defendant’s argument on appeal is based on the following
colloquy which took place during voir dire:
“THE COURT: Have you had any discussions with his sister or with him about this
case?
PROSPECTIVE JUROR [RESPONDEK]: No.
THE COURT: She says no. Anything about being best friends with one of the
witnesses—and in fact[,] this case it is the alleged victim, as I read the charge—anything
about that relationship that would make it difficult for you to be fair and impartial to either
side?
PROSPECTIVE JUROR [RESPONDEK]: No.
THE COURT: So[,] if the State’s Attorney did not prove [defendant] guilty beyond
a reasonable doubt, would you be able to say not guilty?
PROSPECTIVE JUROR [RESPONDEK]: Yes.
THE COURT: And would that cause you trouble with your best friend[,] Mr.
Casner’s sister?
PROSPECTIVE JUROR [RESPONDEK]: No.
THE COURT: So[,] you’re not worried about that?
PROSPECTIVE JUROR [RESPONDEK]: (indicating)
THE COURT: She says no. Very good.”
Additionally, Respondek indicated that her cousin was a police officer in Mt. Vernon, Illinois, but
she did not discuss the case with him.
¶ 30 On July 15, 2020, defendant filed a third motion in limine, requesting the circuit court to
bar any evidence or testimony about defendant’s aggressive behavior on July 27, 2019, before the
alleged altercation with Officer Casner. That day, prior to the start of the second day of defendant’s
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jury trial, the court heard argument on defendant’s third motion in limine. The State argued that
standard protocol at the Marion County jail was to handcuff aggressive inmates, thus, Officer
Casner would testify that, prior to the incident at issue, another officer handcuffed defendant for
aggressive behavior. The court denied defendant’s motion, stating that the State’s fourth motion
in limine requested the court to bar defendant and any of other witnesses from testifying to the
events at 7:05 p.m. on July 27, 2019, which took place prior to the alleged offense against Officer
Casner. The court, however, determined that it was important for the jury to understand why
defendant was initially handcuffed, especially given that the State alleged defendant was
aggressive in committing aggravated battery of a correctional officer. The State clarified that it
intended only for Officer Casner to explain how the jail handles aggressive inmates, which is to
handcuff inmates after they engage in aggressive behavior.
¶ 31 On July 15, 2020, the second day of trial, the circuit court heard testimony from two
witnesses. Before calling its first witness, Kenny Benzing, the State clarified that Benzing was
advised of the court’s ruling regarding defendant’s third motion in limine, advising the witness
“not to go into great detail regarding the reason why the protocol was being followed.” Rather, the
State informed the court that Benzing was advised to say that “it was a protocol for an aggressive
inmate.” The court admonished the jury and the parties proceeded to opening statements.
¶ 32 Following opening statements, the State called Benzing, the Marion County jail
administrator, who testified to the following. On July 27, 2019, the Marion County jail called
Administrator Benzing to inform him that defendant attacked Officer Casner. Following this brief
introduction, the State read Officer Casner’s August 20, 2019, testimony into evidence before the
court and in the presence of the jury.
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¶ 33 Following the admission of Officer Casner’s prior testimony into evidence, Administrator
Benzing testified to the following. Administrator Benzing stated that he witnessed Officer Casner’s
injuries at the hospital and then confirmed that the photos of Officer Casner’s injuries accurately
depicted his injuries that day. The State then introduced into evidence two videos, one depicting
defendant’s holding cell and the other of the booking area, where Officer Casner was standing.
Administrator Benzing testified that he reviewed the video surveillance, indicating that the video
of Officer Casner was shorter and more limited because it recorded only movement. The video of
the holding cell, however, ran continuously and showed defendant’s back to the chuck hole with
his arms through the door. Administrator Benzing testified that the Marion County jail had a
protocol for aggressive inmates, requiring an officer to handcuff an aggressive inmate, place the
inmate in a solitary cell, and then “uncuffed through the chuck hole to prevent further injury to or
possible injury to inmate or an officer.” Administrator Benzing confirmed that the video depicting
Officer Casner showed Officer Casner reaching his hands through the chuck hole to uncuff
defendant, which was the appropriate jail protocol to follow with an aggressive inmate. The State
played both videos for the jury.
¶ 34 On cross-examination, Administrator Benzing testified that if an inmate’s handcuffs are
too tight, the officer can loosen the cuffs with a cuff key. Additionally, he indicated that it is
possible for handcuffs to get too tight if bumped into something.
¶ 35 On redirect, Administrator Benzing testified that Officer Casner acted appropriately and
followed protocol when he attempted to remove defendant’s handcuffs. Following the close of the
State’s evidence, Attorney Fitch moved for directed verdict, which the circuit court denied.
¶ 36 Next, Attorney Fitch called defendant, who testified to the following. Defendant testified
that he placed his back against the chuck hole and placed his hands through the opening to have
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his handcuffs removed. While Officer Casner uncuffed one hand, “the other handcuff squeezed
down tight,” which caused defendant pain, so he pulled away. He claimed that the handcuff got
tighter as he pulled away. Defendant claimed he never touched Officer Casner’s hand but
attempted to grab the other end of the handcuff to decrease his pain. The following colloquy took
place:
“Q. [DEFENSE COUNSEL:] Now, in the video there is a point where you reach
your hand out *** and it looks like you’re touching Officer Casner’s hand. Can you explain
what was happening right there?
A. [DEFENDANT:] Well, I was handcuffed to two different handcuffs, and like
when I was pulling—whenever I was pulling it, it made pressure to my hand. So[,] the
officer had the one side of the handcuff—well, the wrist of the handcuff. And the hit—
same wrist of the handcuff pulling me. So[,] he could let go because my wrist was
tightening. And, when I got it loose[,] I went and sit [sic] down.
Q. So, what were you trying to do when you reached your hand out?
A. *** I was trying to grab the other end of the handcuffs.
Q. And is that what you grabbed?
A. Yes, ma’am.
Q. Did you ever touch Officer Casner’s hand?
A. No, ma’am.”
¶ 37 On cross-examination, defendant confirmed that he was not in pain when Officer Casner
started to remove the handcuffs. Defendant confirmed that the video depicted Officer Casner
attempting to uncuff both of defendant’s hands. He then confirmed that Officer Casner uncuffed
one of his hands before defendant pulled away. The following discussion took place:
“Q. [STATE’S ATTORNEY:] He had one [of your hands] uncuffed, didn’t he?
A. [DEFENDANT:] Yes, sir.
Q. That’s when you pulled away?
A. I don’t know how to answer that. While he was handcuffing the arm, the other
one got tighter. And it got tighter.
Q. But you didn’t pull away until he uncuffed the first handcuff, correct?
A. Yes, sir.”
After closing arguments, a unanimous jury found defendant guilty of aggravated battery of a
correctional officer.
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¶ 38 On August 10, 2020, defendant filed a motion for a new trial, arguing, inter alia, that the
circuit court erred in denying his third motion in limine and motion for discharge and dismissal
based on speedy trial grounds. Defendant did not argue that Attorney Fitch was ineffective for
failing to exercise a peremptory strike against a juror.
¶ 39 On September 24, 2020, the circuit court held defendant’s sentencing hearing. Before
proceeding to sentencing, the court heard argument on defendant’s motion for a new trial, which
the court denied. Following a sentencing hearing that same day, the court sentenced defendant to
seven years in the Illinois Department of Corrections, followed by two years of mandatory
supervised release.
¶ 40 On October 7, 2020, defendant filed a pro se posttrial motion. Citing People v. Krankel,
102 Ill. 2d 181 (1984), defendant argued that Attorney Fitch was ineffective for allegedly failing
to (1) object to “new video evidence” never disclosed to defendant prior to trial when the State
introduced such evidence to the jury, (2) object at trial to Officer Casner testifying as an
unavailable witness, and (3) discuss trial strategy and communicate properly with defendant.
¶ 41 On October 13, 2020, defendant, represented by Attorney Fitch, filed a motion to
reconsider sentence, which the circuit court denied on December 3, 2020. Defendant filed a timely
appeal.
¶ 42 II. Analysis
¶ 43 On appeal, defendant argues that he was denied his statutory right to a speedy trial.
Additionally, he contends that the trial court erroneously permitted the State to elicit irrelevant and
inadmissible testimony under Illinois Rule of Evidence 404 (eff. Jan. 1, 2011) that constituted
other bad acts evidence, and that defense counsel provided ineffective assistance for failing to
exercise a peremptory strike against a juror who was close friends with Officer Casner’s sister.
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¶ 44 A. Speedy Trial Rights
¶ 45 With regard to defendant’s speedy trial rights, defendant argues that the circuit court erred
by denying his motion for discharge and dismissal on speedy trial grounds, where he was tried
more than 120 days after he was taken into custody, resulting from supervisory and administrative
orders. Specifically, defendant argues that “[t]he nature and scope of the statutory right to a speedy
trial—and any exceptions thereto—is a matter that the Illinois Constitution leaves to the legislature
to define.” As such, defendant contends that, because the judiciary lacks power to amend or
suspend his statutory right to a speedy trial, the general administrative and supervisory orders were
unconstitutional. We disagree.
¶ 46 Criminal defendants in Illinois have both constitutional (U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, § 8) and statutory rights (725 ILCS 5/103-5(a) (West 2020)) to a speedy trial.
People v. Sykes, 2017 IL App (1st) 150023, ¶ 35. The State has a responsibility to bring a defendant
to trial within the appropriate 120-day statutory period. Id. ¶ 36. Unless we discern “a clear abuse
of discretion, this court must sustain the trial court’s determination as to whom delay is attributed.”
People v. Jones, 273 Ill. App. 3d 377, 381 (1995). Whether a defendant’s statutory right to a speedy
trial was violated is reviewed de novo. Sykes, 2017 IL App (1st) 150023, ¶ 35 (citing People v.
Van Schoyck, 232 Ill. 2d 330, 335 (2009)).
¶ 47 The Illinois Supreme Court’s orders allowed for the tolling of the speedy-trial term in
response to the COVID-19 pandemic. People v. Mayfield, 2021 IL App (2d) 200603, ¶ 17. Our
colleagues in the Second District recently determined that general continuances made pursuant to
the Illinois Supreme Court’s administrative orders regarding the pandemic have the effect of
tolling speedy trial computations. Id. ¶ 21. We agree.
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¶ 48 Contrary to defendant’s assertions, our supreme court did not overstep its authority by
suspending the operation of the Act, where “[t]he scheduling of criminal trials is a matter of
procedure within the realm of our supreme court’s primary constitutional authority” (id.),
especially provided that the Illinois Supreme Court “retains primary constitutional authority over
court procedure” (Kunkel v. Walton, 179 Ill. 2d 519, 528 (1997)). As the Second District
determined, where the supreme court exercises its power to regulate the scheduling of trials,
“legislation in conflict must yield.” Mayfield, 2021 IL App (2d) 200603, ¶ 25. Accordingly, we
hold that the supreme court had the authority to toll the legislated speedy-trial term in response to
the COVID-19 pandemic and the circumstances facing the court system at the time the orders were
entered.
¶ 49 B. Evidence of Other Bad Acts
¶ 50 Next, defendant asserts that the circuit court erroneously denied defendant’s third motion
in limine, permitting the State to elicit testimony that he behaved aggressively prior to the incident
at issue. Defendant states that “the fact that [defendant] was having handcuffs removed through a
chuck hole was, of course, necessary to explain the context” for the incident between defendant
and Officer Casner. According to defendant, the “reason why that procedure was being employed,
however, was completely irrelevant.” (Emphasis in original.) Thus, the introduction of evidence
by the State that defendant engaged in aggressive behavior before the charged incident was
irrelevant to any proper purpose and amounted to reversible error, where the evidence was used to
show his bad character and his propensity to engage in aggressive behavior. We disagree.
¶ 51 Our supreme court has repeatedly held that evidence of other crimes or bad acts is
admissible if it is relevant for any purpose other than to show a defendant’s propensity to commit
crimes. People v. Wilson, 214 Ill. 2d 127, 135 (2005). Illinois Rule of Evidence 404(b) (eff. Jan.
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1, 2011) provides that evidence of other crimes, wrongs, or acts may be admissible for purposes
other than to show propensity, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. “Other crimes or bad acts evidence may
also be permissibly used to show, by similar acts or incidents, that the act in question was not
performed inadvertently, accidently, involuntarily, or without guilty knowledge.” People v.
Brown-Engel, 2018 IL App (3d) 160368, ¶ 21 (citing 1 John W. Strong, McCormick on Evidence
§ 190, at 660, 664 (5th ed. 1999)). The admissibility of other crimes or bad acts evidence rests
within the sound discretion of the circuit court, and its decision on the matter will not be disturbed
absent a clear abuse of discretion. People v. Heard, 187 Ill. 2d 36, 58 (1999).
¶ 52 Here, the prior bad act testimony of Officer Casner and Administrator Benzing fits squarely
within the recognized exceptions, which allows such evidence to show defendant’s intent or to
show that the act in question was not performed inadvertently, accidently, involuntarily, or without
guilty knowledge. To sustain a conviction for aggravated battery, the State needed to show that
defendant knowingly made physical contact of an insulting or provoking nature with Officer
Casner. Defendant’s intent was at issue at trial because he claimed he pulled away from Officer
Casner in an attempt to avoid pain that he experienced during the uncuffing procedure, not to cause
Officer Casner harm.
¶ 53 Moreover, defendant claimed he never touched Officer Casner’s hand. Instead, he intended
to grab the other end of the handcuff to decrease his pain caused by the tight cuff on his restrained
wrist. Officer Casner’s and Administrator Benzing’s testimonies that defendant engaged in
aggressive behavior prior to the incident, along with the admitted video evidence demonstrating
the subsequent incident with Officer Casner, were highly relevant to show defendant intended to
make physical contact of a provoking nature with Officer Casner, which resulted in injuries to his
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arms and hands. Therefore, the testimonies of Officer Casner and Administrator Benzing regarding
defendant’s aggressiveness as a prior bad act were relevant to show intent and lack of mistake.
¶ 54 Additionally, the evidence of prior bad acts provided context to the circumstances
surrounding the charged offense. Importantly, in explaining the context, the testimonies of Officer
Casner and Administrator Benzing did not introduce the details of the earlier incident in which
defendant was aggressive. Rather, the State elicited testimony from Officer Casner and
Administrator Benzing to explain that, due to prior, undisclosed aggressive behavior, defendant
was handcuffed, removed from D-block, and escorted to a holding cell in the booking area.
Moreover, consistent with Marion County jail protocol, both witnesses testified consistently that
Officer Casner attempted to remove defendant’s handcuffs in the holding cell, with defendant’s
back to Officer Casner and his hands through a chuck hole. Without this testimony, the charged
incident would appear isolated and possibly cause credibility issues for Officer Casner and
Administrator Benzing concerning the charged offense. See Brown-Engel, 2018 IL App (3d)
160368, ¶ 24 (evidence of defendant’s prior acts was admissible to show the context of the charged
act). Without evidence of defendant’s prior aggressiveness, the jury would have likely lacked the
necessary information to understand why Officer Casner could not remove defendant’s handcuffs
face-to-face with the cell door open. Consequently, we find no abuse of discretion in the admission
of Officer Casner’s and Administrator Benzing’s testimonies concerning defendant’s prior bad act
to establish intent under Illinois Rule of Evidence 404 (eff. Jan. 1, 2011). Accordingly, we cannot
conclude that the circuit court abused its discretion in denying defendant’s third motion in limine.
¶ 55 C. Ineffective Assistance of Counsel
¶ 56 Lastly, defendant argues ineffective assistance of counsel. Specifically, defendant contends
that Attorney Fitch was ineffective for failing to exercise a peremptory strike during voir dire
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against Respondek, a juror in defendant’s case, who was close friends with Officer Casner’s sister.
Specifically, defendant asserts that counsel’s failure to strike juror Respondek was “inexplicable,
unjustifiable, and unreasonable under prevailing professional norms.” Moreover, arguing the
evidence was not overwhelming against him, defendant asserts “it would have been reasonable for
a jury free from the taint of Respondek’s relationship with the alleged victim’s sister to have
returned a verdict of not guilty.” We cannot agree.
¶ 57 The ineffectiveness of defense counsel may properly be raised for the first time on appeal.
People v. Jefferson, 2021 IL App (2d) 190179, ¶ 25 (citing People v. Lofton, 2015 IL App (2d)
130135, ¶ 24). A reviewing court may, however, abstain from deciding an ineffectiveness claim
on direct appeal if the record is not properly developed. Id. (citing People v. Veach, 2017 IL
120649, ¶ 46). Here, the record is adequate for consideration of defendant’s ineffectiveness claim,
which we review de novo. Lofton, 2015 IL App (2d) 130135, ¶ 24 (“Where, as here, the claim of
ineffective assistance was not raised in the trial court, our review is de novo.” (citing People v.
Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006))).
¶ 58 A defendant alleging ineffective assistance of counsel must satisfy the two-part test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To satisfy this test, the defendant must
establish that his attorney’s performance fell below an objective standard of reasonableness and
that this deficient performance prejudiced him. Id. at 688. Next, to establish prejudice, a defendant
must prove a reasonable probability exists that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Id. at 687. A reasonable probability is one that
sufficiently undermines confidence in the outcome of the proceeding. Id. at 694. The defendant’s
failure to satisfy either prong of Strickland defeats an ineffective assistance claim. People v.
Edwards, 195 Ill. 2d 142, 163 (2001). Thus, a reviewing court may resolve an ineffective assistance
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claim based upon only the prejudice component because a lack of prejudice renders irrelevant the
issue of counsel’s performance. People v. Coleman, 183 Ill. 2d 366, 397-98 (1998).
¶ 59 In the case at bar, defendant argues defense counsel’s failure to excuse Respondek using a
peremptory strike was objectively and professionally unreasonable. Defendant also contends that
he suffered prejudice as a result of the allegedly deficient performance. According to defendant,
“it would have been reasonable for a jury free from the taint of Respondek’s relationship with the
alleged victim’s sister to have returned a verdict of not guilty.” We disagree.
¶ 60 Even if we were to assume a deficiency on the part of defense counsel, defendant has not
shown the requisite prejudice. The prejudice prong of the Strickland test generally requires the
defendant to show “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. Contrary to defendant’s
argument, the evidence against defendant was strong. Defendant has failed to demonstrate any
clear bias or prejudice held by Respondek against him. Rather, defendant has only stated what he
believes is the appearance of such bias because Respondek knew Officer Casner. Defendant has
failed to show that the verdict would probably have been different if Respondek had not served as
a juror. Instead, the record demonstrates Respondek’s impartiality in her response to the circuit
court’s questioning that she did not discuss the case with Officer Casner’s sister and believed she
could remain impartial towards defendant in light of her relationship with Officer Casner’s sister.
Moreover, Respondek responded that she believed she would find defendant not guilty if the State
failed to prove him guilty beyond a reasonable doubt, and that a not guilty verdict would not affect
her friendship with Officer Casner’s sister. For the foregoing reasons, we find defendant was not
deprived of his constitutional right to effective assistance of counsel.
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¶ 61 III. Conclusion
¶ 62 For the reasons stated, we affirm the judgment of the circuit court of Marion County, where
defendant’s right to a speedy trial was not violated; the court did not abuse its discretion by denying
defendant’s motion in limine and allowing the State to admit relevant testimony about defendant’s
aggressiveness as a prior bad act to show intent and lack of mistake; and defendant’s claim of
ineffective assistance of counsel fails, where he failed to demonstrate prejudice.
¶ 63 Affirmed.
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People v. Ezebuiroh
Court: Appellate Court of Illinois
Date filed: 2022-11-14
Citations: 2022 IL App (5th) 200400-U
Copy CitationsCombined Opinion