FIRST DIVISION

September 29, 2008

No. 1-06-0924

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) 

)

MARVIN EXSON, ) Honorable

) Mary M. Brosnahan,

Defendant-Appellant. ) Judge Presiding.

Modified Upon Denial of Rehearing

JUSTICE WOLFSON delivered the opinion of the court:

The defendant was found guilty by a jury of two counts of

possession of a controlled substance. He was sentenced to

concurrent terms of three years in prison. The only issue in

this case is whether the defendant’s statutory right to a speedy

trial was violated when the trial court granted the State a 30-

day extension of the 120-day trial term. We conclude it was. We

reverse the trial court’s judgment and remand the cause with

directions to enter an order discharging the defendant. 

FACTS 

Defendant was arrested on March 2, 2005, for possession of

cocaine and heroin. Defendant was unable to post bond and

remained incarcerated until April 13, 2005, when he was placed on

an electronic home monitoring program. Defendant filed a motion

to quash his arrest and suppress evidence on May 2, 2005,

alleging he was arrested without probable cause. On June 9,

2005, defendant made a demand for trial, but the State answered
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it was not ready to proceed. The matter was continued until

August 3, 2005. On that date, the State filed another motion to

continue the cause to August 22, 2005. The motion was granted. 

Defendant again demanded trial. 

On August 22, 2005, defendant requested leave to withdraw

his motion to quash, demanded trial, then asked to reinstate his

motion to quash and suppress. The State objected to the

reinstatement of the motion because only one day remained before

the expiration of the 120-day speedy trial period. The trial

court overruled the objection and conducted a hearing in the

matter. The court then denied the motion and defendant answered

ready for jury trial. 

The State responded it was not ready to proceed with a jury

trial because it had not located the chemist who conducted the

forensic testing of the drugs seized from defendant and requested

a continuance. The State explained it was under the impression

that defendant was going to be tried by the judge, and therefore

assumed defendant’s attorney, an assistant Cook County public

defender, would stipulate to the results of the forensic testing,

as was the custom of that office. 

Defense counsel objected to the continuance, noting she

never indicated her client would stipulate to the forensic test

results. She acknowledged that the matter was set for a bench

trial, and that it was the custom of her office to stipulate to
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laboratory results in bench trials involving narcotics

possession. She said she never indicated this custom would not

be followed in this case, although the Assistant State’s Attorney

never asked. She said defendant had a right to a jury trial, had

never waived that right, and was ready to proceed to trial. 

When asked to explain its search for the chemist, the State

informed the court that after it learned of defendant’s jury

trial demand that morning it called the Illinois State Police

Crime Laboratory and was told the chemist who performed the

analysis was no longer employed there. The State also tried to

locate the chemist through her last known address and telephone

number, but was unsuccessful. This was the State’s first attempt

to contact the chemist. 

At the conclusion of this hearing, the trial court granted

the State’s request for a 30-day continuance, to September 19,

2005. In doing so, the court noted that it is "the custom of the

parties when a bench trial is indicated that stipulations to

toxicology evidence is normally anticipated" and that it did not

think "it was unreasonable for the State to assume that the lab

would be stipulated" in this case. The court further observed

that the matter was set for a bench trial that day, and

understood "how the State would not under these circumstances

begin it’s efforts to locate the analyst in this case." The

court found the State’s efforts to contact the chemist after it
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was informed of defendant’s jury demand constituted due

diligence. 

On September 19, 2005, the trial was continued by agreement

to November 21, 2005, due to the absence of defense counsel. On

November 21, before the jury trial began, defendant filed a

motion to dismiss the charges based on a lack of due diligence by

the State in locating the chemist, in violation of his statutory

right to a speedy trial. The trial court denied the motion. At

trial, the former Illinois State Police chemist who analyzed the

recovered items testified. She said her analysis determined the

evidence seized from the defendant contained cocaine and heroin. 

The defense contested the chain of custody. 

DECISION

The issue is the propriety of the order granting the State a

30-day extension to locate the chemist. Defendant contends the

State did not act with due diligence to locate the chemist prior

to trial, and that it should not have presumed the defense would

stipulate to the laboratory results. Defendant contends the

trial court improperly continued the matter beyond the statutory

speedy-trial period. The State does not deny electronic home

monitoring is equivalent to incarceration, nor does it deny the

statutory speedy trial period would have run absent the trial

court’s finding of due diligence and granting of the 30-day

extension. 
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A defendant has a right to a speedy trial under both the

Federal and Illinois Constitutions (U.S. Const., amends. VI, XIV;

Ill. Const. 1970, art. I, §8), as well as under Illinois statute

(725 ILCS 5/103-5 (West 2004)); however, these rights are not

precisely equivalent (People v. Staten, 159 Ill. 2d 419, 426, 639

N.E.2d 550 (1994)). In order to prove a statutory violation,

defendant need only show that despite his demand for trial he has

not been tried within the period set by statute and that he has

not caused or contributed to the delays. Staten, 159 Ill. 2d at

426. Proof of the constitutional violation, by contrast,

requires consideration of the length of the delay in trial, the

reasons for the delay, the defendant’s assertion of the speedytrial right, and prejudice to the defendant caused by such delay. 

Staten, 159 Ill. 2d at 426. When a statutory speedy-trial

violation is alleged, "the statute operates to prevent the

constitutional issue from arising except in cases involving

prolonged delay, or novel issues." Staten, 159 Ill. 2d at 426

(quoting People v. Stuckey, 34 Ill. 2d 521, 523, 216 N.E.2d 785

(1966)). In this case, defendant’s speedy trial claim is

statutory, not constitutional. 

In Illinois, every incarcerated defendant must be tried

within 120 days from the date he was taken into custody except in

circumstances not present here. 725 ILCS 5/103-5(a) (West 2004). 

If he is not, the court must release him from custody and dismiss
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the charges against him. 725 ILCS 5/103-5(d) (West 2004). 

The period in which defendant must be tried, however, may be

extended once by up to 60 days where the State has been unable to

obtain evidence despite its due diligence and has provided

reasonable grounds for the court to believe that it will do so at

a later date. 725 ILCS 5/103-5(c) (West 2004). The decision to

extend the speedy trial period beyond 120 days lies within the

discretion of the trial court, and we will not disturb its

determination absent a clear abuse of discretion. People v.

Richards, 81 Ill. 2d 454, 458, 410 N.E.2d 833 (1980).

I. Forfeiture of the Issue 

The State contends defendant forfeited his right to assert a

speedy trial claim because he failed to raise the issue in his

post-trial motion. See People v. Enoch, 122 Ill. 2d 176, 186,

522 N.E.2d 1124 (1988) (both a trial objection and a written

post-trial motion raising the issue are required “for alleged

errors that could have been raised during trial.”) 

Defendant acknowledges the omission. He contends it was not

necessary for him to raise the issue in his post-trial motion

given the numerous objections he made to the extension at trial. 

Defendant also contends his claim fits within the constitutional

exception to the waiver doctrine recognized in Enoch, 122 Ill. 2d

at 190 ("when the defendant fails to comply with the statutory

requirement to file a post-trial motion, our review will be
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limited to constitutional issues which have properly been raised

at trial and which can be raised later in a post-conviction

hearing petition [citation], sufficiency of the evidence, and

plain error.") 

Reviewing courts in this state have applied the waiver

doctrine in circumstances where, as here, defendant failed to

assert his speedy trial claim in a post-trial motion. See e.g.,

People v. Peco, 345 Ill. App. 3d 724, 728, 803 N.E.2d 561 (2004);

People v. Turley, 235 Ill. App. 3d 917, 919, 601 N.E.2d 305

(1992).

Several appellate court decisions have taken the position

that “waiver is a bar upon the parties and not upon the court.” 

For example, see People v. Villanueva, 382 Ill. App. 3d 301, 305,

887 N.E.2d 765 (2008), quoting People v. Roberts, 299 Ill. App.

3d 926, 931, 702 N.E.2d 249 (1998). Roberts relied on the

supreme court’s statement in Wagner v. City of Chicago, 166 Ill.

2d 144, 149, 651 N.E.2d 1120 (1995). Wagner is a civil case, but

does not limit its view of waiver to civil cases. See also In re

Marriage of Sutton, 136 Ill. 2d 441, 446, 557 N.E.2d 869 (1990)

(“The rule of waiver is, of course, a limitation on the parties

and not the courts.”)

We also observe that three dissenters in a recent supreme

court decision, People v. Heider, No. 103859, slip op. at 21 (May

22, 2008), referred to the “forfeiture is a limitation on the
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parties” basis for review, used in that case by the appellate

court to reach a sentencing issue, as an “oft-misused and

misunderstood statement ***.” 

Still, the Heider majority held the purpose of preserving a

claim of error was met and there was no forfeiture “where the

trial court clearly had an opportunity to review the same

essential claim that was later raised on appeal ***.” Heider,

slip op. at 14. 

In this case, defendant vigorously objected to the State’s

request for a 30-day continuance in order to locate the chemist

and prepare her for trial. Defense counsel also filed a motion

to dismiss based on the State’s lack of due diligence in locating

the chemist prior to trial; the motion was denied by the trial

court. Based on the trial court’s comments in granting the

State’s motion for a continuance, we fail to see how raising the

issue in a written post-trial motion would have changed the

outcome in the trial court. See People v. Van Dyk, 40 Ill. App.

3d 275, 278, 352 N.E.2d 327 (1976) (“The purpose of the salutory

rule requiring a defendant to file a motion for a new trial which

specifies the grounds in order to preserve issues for appeal is

to allow the trial court to correct possible errors and thereby

eliminate unnecessary reviews and reversals.”) 

Although we recognize defendant’s speedy trial claim is

statutorily--not constitutionally–-based, defendant’s rights
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under the statute are underpinned by his right to a speedy trial

under both the Federal and Illinois Constitutions. See People v.

Battles, 311 Ill. App. 3d 991, 997, 724 N.E.2d 997 (2000) (“The

speedy trial statute enforces a constitutional right. Therefore,

the statute *** must be liberally construed in defendant’s

favor.”) In light of the above factors, we will consider the

merits of defendant’s contention.

II. Due Diligence 

The test of due diligence is whether the State began efforts

to locate its witness in sufficient time to secure her presence

before the speedy trial term expired. People v. Gray, 326 Ill.

App. 3d 906, 910, 761 N.E.2d 1237 (2001). 

Here, the State admits it made no attempt to contact the

chemist until the 119th day of the 120-day trial term, the day

defendant’s trial was scheduled to begin. After it learned of

defendant’s jury trial demand that morning, the State called the

Illinois State Police Crime Laboratory and was told the chemist

who performed the analysis no longer was employed there. The

State then tried to locate the chemist through her last known

address and telephone number, but was unsuccessful. Because the

State failed to make any meaningful attempt to contact the

chemist until the 119th day defendant was in custody, its only

recourse was to request a 30-day continuance. We fail to see how

the State’s actions in attempting to contact the chemist on the
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119th of the 120-day period rise to the level of due diligence as

that term is used in section 2/103-5(c). 

Black’s Law Dictionary defines diligence as “a continual

effort to accomplish something,” or “care, caution; the attention

required from a person in a given situation.” Black’s Law

Dictionary 468 (7th ed. 1999). Whatever “due diligence” means,

it cannot be defined as ignoring or doing nothing about a

statutory requirement. 

The State contends it did not have to show due diligence

before the 119th day because it had no reason to believe the

chemist’s testimony was necessary until defendant demanded a jury

trial, veering from the public defender’s established custom of

stipulating to lab reports in a bench trial. Defendant, however,

was well within his rights to elect a jury trial. He was under

no obligation to waive his right to a jury trial in order to make

it easier for the State to try him within the 120-day period. 

The State knew the chemist’s testimony was critical to the

presentation of its case. Rather than locating and preparing the

witness for trial during the 120-day period, however, the State

chose to take for granted that defendant would ultimately elect a

bench trial and stipulate to the chemist’s testimony. Although

defendant’s trial counsel admitted the public defender’s office

customarily stipulates to forensic reports in bench trials, the

defendant has a controlling vote on whether a stipulation would
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be entered. See People v. Campbell, 208 Ill. 2d 203, 217-18, 802

N.E.2d 1205 (2003) (“defense counsel may waive a defendant’s

right of confrontation as long as the defendant does not object

and the decision to stipulate is a matter of trial tactics and

strategy.”) 

We find the State’s failure to ask defendant’s counsel

whether the defense intended to stipulate to the lab reports is

evidence of a lack of diligence on the part of the State. We

agree with the defendant’s claim that the State had no right to

rely entirely on a purported stipulation custom in bench trials. 

The State refers to the defense position as “foppish idealism.” 

We suggest the State would be better served by observing that a

simple and timely inquiry about willingness to stipulate is a

well-established practice and would have obviated the only issue

in this case. 

The cases relied on by the State do not warrant a different

conclusion. In People v. Winfield, 113 Ill. App. 3d 818, 447

N.E.2d 1029 (1983), the State became aware 10 days before the

expiration of the 120-day period that a material witness could

not be located. The State then sent officers to her last known

address, contacted several of her acquaintances, left messages

for her at various locations where she was expected to return,

and searched the area where she usually resided and was recently

seen. The trial court granted the State’s motion for a
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continuance after the witness could not be located within the

120-day period. The defendant contended that given the witness’

criminal background, the State should have been aware she would

be difficult to locate and begun its efforts much sooner. 

Rejecting the defendant’s contention, the court held the

record established that the witness had voluntarily contacted an

officer assigned to the case on several occasions over a period

of several months, leaving a telephone number she purportedly

could be contacted at each time. Winfield, 113 Ill. App. 3d at

825. Given the prior cooperation shown by the witness, the court

held the State had no reason to know she would be difficult to

locate. Winfield, 113 Ill. App. 3d at 825. The court held the

State’s efforts were sufficient to demonstrate due diligence. 

Winfield, 113 Ill. App. 3d at 825.

In People v. Smith, 268 Ill. App. 3d 1008, 645 N.E.2d 384

(1994), the State discovered two of its material witnesses no

longer resided at their last known residences 53 days before the

expiration of the original 120-day term. The State then took

substantial steps to locate them, including checking with the

Illinois Department of Public Aid, the Illinois Secretary of

State, the United States Postal Service, and arrest records. 

Although the witnesses were not located before the defendant’s

scheduled trial date, the court held the State exercised due

diligence in locating the witnesses within the 120-day term. 
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Smith, 268 Ill. App. 3d at 1013-14. The court also held nothing

in the record indicated the State should have known that

searching for the witnesses would have been necessary. Smith,

268 Ill. App. 3d at 1014. Given the witnesses’ earlier

cooperation and the fact they both resided in or near Chicago,

the court held it was reasonable for the State to delay

contacting them until the defendant’s case was clearly in trial

posture. Smith, 268 Ill. App. 3d at 1014. 

In this case, unlike Winfield and Smith, the State had

absolutely no contact–-voluntary or otherwise--with the chemist

before its attempt to locate her on the 119th day of the 120-day

term. When the State contacted the Illinois State Police Crime

Laboratory on August 22, 2005, it learned the chemist had left

the laboratory’s employment two months earlier. Defendant’s

trial date had been set since June 9, 2005. 

The State’s last-minute attempt to locate the chemist was a

far cry from the 10 days before in Winfield and 53 days before in

Smith. The State’s delay in contacting the chemist until the

119th day, the day the trial was set, demonstrates a lack of

diligence. 

In People v. Shannon, 34 Ill. App. 3d 185, 187-88, 340

N.E.2d 129 (1975), we said: 

“We are impressed by the fact that it does

not appear that any effort whatsoever was
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made to ascertain the availability of the two

police eyewitnesses until the afternoon four

days prior to trial. *** In our opinion,

these belated efforts to locate these

essential witnesses were not sufficient to

constitute due diligence on the part of the

State. This conclusion is particularly

supported by the fact that the vacation

schedules of these two witnesses were in

existence months before defendant was

arrested.”

The State’s request on the 120th day for a section 103-5(c)

extension to conduct DNA testing was granted by the trial court

in People v. Battles, 311 Ill. App. 3d 991, 724 N.E.2d 997

(2000). The trial court’s decision was held to be an abuse of

discretion--“The State did not explain its effort [to complete

testing] because there was none.” Battles, 311 Ill. App. 3d at

1004. 

In People v. Durham, 193 Ill. App. 3d 545, 550 N.E.2d 259

(1990), the State moved for and received a continuance beyond the

120-day limit because a police crime report had not been

received. Finding “the record in this case is barren of actions

or efforts on the part of the State which would support a finding

that due diligence was exercised” to obtain the report, the court
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reversed the defendant’s drug conviction. Durham, 193 Ill. App.

3d at 545. We adopt the court’s view that: 

“To hold that the prosecutor in the instant

case exercised due diligence would, in fact,

abrogate the requirement of diligence in

cases where the speedy trial provision is a

factor.” Durham, 193 Ill. App. 3d at 547. 

Finally, we address an issue raised by the State in its

Petition for Rehearing. The State, for the first time, contends

August 22, 2005, was not the 119th day of the statutory term

because the defendant had filed a motion to quash and suppress

evidence on April 13 and the motion was not heard until August

22.

In the trial court, as the State concedes, the prosecution

agreed it had reached the 119th day of the term on August 22. 

The trial court was not asked to review that concession. In its

briefs filed in this court, the State again conceded that August

22 was the 119th day. During oral argument before this court

once again the State agreed that August 22 was the 119th day.

Illinois Supreme Court Rule 341(h)(7) is clear: "Points not

argued are waived and shall not be raised in the reply brief, in

oral argument, or on petition for rehearing." Rule 341(i)

applies 341(h)(7) to appellee briefs. We take the rule to mean
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what it says. State Board of Managers v. Wabash Loftominium, 376

Ill. App. 3d 185, 188-89, 876 N.E.2d 65 (2007).

The principal of waiver applies to the State as well as the

defendant in a criminal case. People v. Holloway, 86 Ill. 2d 78,

91, 426 N.E.2d 871 (1981). This is not simply a matter of

failure to object. The State took the position at every stage of

this case, until its Petition for Rehearing, that August 22 was

the 119th day of the term. The trial court relied on that

concession, as did we. We still do. We will not inquire into

the new issue raised by the State on a petition for rehearing,

other than to note the critical time periods were generated by

motions of the State and never were agreed to by the defense. We

also observe that an express concession during oral argument

concerning the record has been held to eliminate the issue on

appeal. Williams v. Manchester, 228 Ill. 2d 404, 424-25, 888

N.E.2d 1 (2008). We deny the State's Petition for Rehearing.

We conclude the record reflects the trial court’s grant of a

30-day continuance was an abuse of discretion. The only possible

remedy for the deprivation of defendant’s statutory right to a

speedy trial is discharge. See Shannon, 34 Ill. App. 3d at 187-

88. 

CONCLUSION

We reverse the trial court’s judgment and remand the cause

with directions to enter an order discharging the defendant.
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Reversed and remanded with directions.

GARCIA, J., concurs.

JUSTICE CAHILL, dissenting:

I respectfully disagree with the majority's position that

defendant's trial objections alone preserved for review his

statutorily based speedy trial claim. The majority begins its

opinion by framing the issue: "The only issue in this case is

whether the defendant's statutory right to a speedy trial was

violated when the trial court granted the State a 30-day

extension of the 120-day trial term." (Emphasis added.) Slip

op. at 1. The majority then distinguishes between the

constitutional and statutory right to a speedy trial and

concludes that "defendant's speedy trial claim is statutory, not

constitutional." Slip op. at 5. But then, without explanation,

the majority holds that defendant's speedy trial claim is

constitutional for purposes of avoiding the waiver rule announced

in People v. Enoch, 122 Ill. 2d 176, 190, 522 N.E.2d 1124 (1988). 

Our supreme court there held that "when the defendant fails

to comply with the statutory requirement to file a post-trial

motion, [the court's] review will be limited to constitutional

issues which have properly been raised at trial and which can be

raised later in a post-conviction hearing petition." (Emphasis

added.) Enoch, 122 Ill. 2d at 190. The majority maintains that
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defendant's claim, although grounded in statute, has

constitutional underpinnings and, for this reason, raises a

constitutional issue not subject to waiver. Slip op. at 8. The

majority cites People v. Battles, 311 Ill. App. 3d 991, 997, 724

N.E.2d 997 (2000), which in turn cites People v. Reimolds, 92

Ill. 2d 101, 106, 440 N.E.2d 872 (1982). Those cases acknowledge

that the speedy trial statute implements a constitutional right

and, as such, should be liberally construed in favor of the

defendant. Battles, 311 Ill. App. 3d at 997; Reimolds, 92 Ill.

2d at 106. They do not speak to whether an accused waives his

right to raise a statutorily based speedy trial claim on direct

appeal by failing to first raise the issue in a posttrial motion. 

But there are cases that do.

"[I]t was long ago established that the right to discharge

granted by the [speedy trial] statute was waived if not asserted

by the defendant prior to conviction" (People v. Pearson, 88 Ill.

2d 210, 216, 430 N.E.2d 990 (1981)), or through a posttrial

motion (People v. Alcazar, 173 Ill. App. 3d 344, 354, 527 N.E.2d

325 (1988); People v. Richardson, 49 Ill. App. 3d 170, 172, 363

N.E.2d 924 (1977)). Even the constitutional right to a speedy

trial is subject to waiver. See People v. Taylor, 32 Ill. 2d

165, 168, 204 N.E.2d 734 (1965); People v. Hamby, 27 Ill. 2d 493,

497, 190 N.E.2d 289 (1963). Also, statutorily based speedy trial

claims are not constitutional in scope and, for this reason, are
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inappropriate for consideration in a postconviction proceeding. 

People v. French, 46 Ill. 2d 104, 107, 262 N.E.2d 901 (1970); see

also People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511

(2004), citing 725 ILCS 5/122-1 (West 2000) (postconviction

proceedings are limited to consideration of constitutional issues

not presented at trial). 

"[W]here the question concerns whether there has been a

waiver of the [speedy trial] statute, [our supreme] court has

held the case does not involve the denial of a constitutional

right, and the defendant cannot raise the issue in a petition

under the Post-Conviction Hearing Act." People v. Morris, 3 Ill.

2d 437, 442, 121 N.E.2d 810 (1954). I disagree with the

majority's conclusion to the contrary.

I am also puzzled by the majority decision to include a

reference to both the dissent and the majority opinion in People

v. Heider, No. 103859 (May 22, 2008). Slip op. at 7-8. While

Heider addressed forfeiture of an issue on appeal, the defendant

had filed a written postsentencing motion in compliance with

section 5-8-1(c) of the Unified Code of Corrections (730 ILCS

5/5-8-1(c) (West 2002)). Heider, slip op. at 11. The dispute

involved the wording of the postsentencing motion. The case has

no relevance here, where no posttrial motion was filed.

Finally, in response to the State's petition for rehearing,

the majority holds the State to the same waiver rule that it
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relaxed for defendant. The majority cites Rule 341(h)(7) (210

Ill. 2d R. 341(h)(7)) (points not argued in initial appellate

brief are waived). But a petition for rehearing is an

appropriate vehicle to bring to the reviewing court's attention

points that were originally overlooked. See 210 Ill. 2d R.

367(b). Both the parties and the court overlooked the fact that

defendant filed a motion to suppress that tolled the running of

the speedy trial statute. The fact that the parties mistakenly

believed the speedy trial statute had run cannot act to negate

what actually occurred in the trial court. It is the record, and

not the statement of that record propounded in the parties'

briefs, that binds the appellate court. County Board of School

Trustees v. Bendt, 30 Ill. App. 2d 329, 334, 174 N.E.2d 404

(1961). The record " 'imports absolute verity, and is the sole,

conclusive and unimpeachable evidence of proceedings in the lower

court.' " Bendt, 30 Ill. App. 2d at 334, quoting McGurn v.

Brotman, 25 Ill. App. 2d 294, 167 N.E.2d 12 (1960). The majority

here failed to take into consideration the impact that

defendant's motion to suppress had on his speedy trial claim

despite the clear and unequivocal law in this state that such a

motion tolls the running of the speedy trial statute. See People

v. McDonald, 168 Ill. 2d 420, 440, 660 N.E.2d 832 (1995). The

majority then compounded this error by refusing to consider,

under the guise of waiver, the State's legitimate point on
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rehearing that defendant's right to a speedy trial was not, in

fact, violated.