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NO. 5-04-0143

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

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           JUSTICE WELCH delivered the opinion of the court:

           The defendant, Jamie B. Stockett, was found guilty by a jury of aggravated robberyand was sentenced by the circuit court of St. Clair County to 11 years' imprisonment. Thedefendant appeals from the denial by the circuit court of St. Clair County of his pro sepretrial motion to dismiss the charges against him and discharge him from custody based onthe violation of his statutory and constitutional rights to a speedy trial. For the reasons thatfollow, we affirm.

           The defendant was arrested on January 5, 2003, on a charge of aggravated robbery. On January 24, 2003, the defendant was indicted on charges of aggravated robbery androbbery. He remained in custody throughout these proceedings.

           On February 10, 2003, the defendant filed a motion for discovery. He requested,among other things, a transcript of those portions of the grand jury minutes containing histestimony and the relevant testimony of persons whom the prosecutor intended to call aswitnesses at the trial. The State's response to the defendant's motion for discovery stated thatthe State did not have in its possession or control a transcript of the grand jury proceedingspertaining to the defendant; however, the response also stated, "[S]aid transcript is inpossession and control of the Twentieth Judicial Circuit and is available on requesttherefrom." On March 18, 2003, the circuit court of St. Clair County ordered the courtreporter to prepare the transcript of the grand jury proceedings pertaining to the defendant. The transcript was finally delivered to the defendant on June 26, 2003.

           On May 15, 2003, the defendant filed a motion to suppress his confession. Thismotion was denied on July 31, 2003.

           On June 23, 2003, the defendant filed a pro se motion to dismiss the indictmentagainst him based on a violation of his statutory and constitutional rights to a speedy trial. This motion was denied on September 4, 2003. The cause proceeded to a jury trial onSeptember 8, 2003. The defendant was found guilty and on October 30, 2003, wassentenced to 11 years' imprisonment. On appeal, the defendant argues only that his statutoryright to a speedy trial was violated, and we will address only this issue.

           Section 103-5(a) of the Code of Criminal Procedure of 1963 provides that everyperson in custody for an alleged offense shall be tried within 120 days from the date he wastaken into custody, unless delay is occasioned by the defendant. 725 ILCS 5/103-5(a) (West2002). Every person not tried in accordance with this section must be discharged fromcustody and is entitled to have the charges dismissed. 725 ILCS 5/103-5(d) (West 2002);People v. Bowman, 138 Ill. 2d 131, 137 (1990).

           The period from January 5, 2003, the date of the defendant's arrest, until May 15,2003, the date the defendant filed his motion to suppress, totals 130 days, meaning that thespeedy trial term, exclusive of any delay attributable to the defendant, expired on May 5,2003. The defendant argues on appeal that the trial court erred in attributing to him the delayfrom March 18, 2003, to May 15, 2003, occasioned by his attempt to obtain the transcriptof the grand jury proceedings. He argues that Supreme Court Rule 412 (188 Ill. 2d R. 412)requires the prosecutor to turn over to the defendant transcripts of the grand jury proceedingspertaining to the defendant and, if those transcripts are not in the control or possession of theprosecutor, to make diligent, good-faith efforts to obtain those transcripts and make themavailable to the defendant. Accordingly, the defendant argues, any delay in obtaining thosetranscripts should be attributable to the State and not to the defendant.

           Supreme Court Rule 412(a)(iii) provides that the prosecutor shall, upon writtenmotion of the defendant, disclose to the defendant a transcript of relevant grand jurytestimony if that transcript is within the possession or control of the prosecutor. 188 Ill. 2dR. 412(a)(iii). The rule further provides that if otherwise discoverable material is not in thepossession or control of the prosecutor but is in the possession or control of othergovernmental personnel, the prosecutor shall use diligent, good-faith efforts to cause thatdiscoverable material to be made available to the defendant. 188 Ill. 2d R. 412(g). If theprosecutor's efforts to procure the material are unsuccessful and the material or othergovernmental personnel are subject to the jurisdiction of the court, the court shall issuesuitable subpoenas or orders to cause that material to be made available to the defendant. 188Ill. 2d R. 412(g). The prosecutor is to perform its obligations under the rule "as soon aspracticable following the filing of a motion" by the defendant. 188 Ill. 2d R. 412(d).

           The question on appeal is whether the delay from March 18, 2003, when the order forthe grand jury transcript was entered, until May 15, 2003, when the motion to suppress wasfiled, was delay attributable to the defendant or whether it was delay attributable to the State. If the delay was attributable to the defendant, his right to a speedy trial was not violated. Ifthe delay was attributable to the State, the defendant was tried in violation of his right to aspeedy trial and the trial court erred in denying the defendant's motion for a dismissal anddischarge. The defendant has the burden of affirmatively establishing the violation. Peoplev. Bowman, 138 Ill. 2d 131, 137 (1990). The trial court's determination of who is responsiblefor the delay is entitled to much deference and should be sustained in the absence of a clearshowing of the trial court's abuse of discretion. Bowman, 138 Ill. 2d at 137.

           Ordinarily, a routine discovery request will not toll the speedy trial period because,in actuality, it occasions no delay to the prosecution. See People v. Mollet, 28 Ill. App. 3d415, 417 (1975). Most routine discovery requests can be responded to almost immediatelyby the prosecutor because the material requested has already been compiled by the police orprosecutor. Mollet, 28 Ill. App. 3d at 418. However, this is not always the case. As theIllinois Supreme Court explained in People v. Crawford Distributing Co., 78 Ill. 2d 70, 80(1979):

"Certain discovery motions require much more time to fulfill than others. Theinformation may be easily accessible or it may only be obtained after difficult searchand inquiry. Therefore, some discovery motions may cause delay while others do not. This is a factual question that calls for the trial court's appraisal and we should givegreat weight to the trial court's finding. Also, it is incumbent upon the defendant todecide how he wishes to prepare for trial, and any course that he chooses that causesdelay is charged to him."

Where a defendant's act in fact causes or contributes to a delay, that delay will be chargedto the defendant. Bowman, 138 Ill. 2d at 139-40.

           In the instant case, the defendant needed the transcript of the grand jury proceedingsin order to prepare for a trial. This transcript was not in the control or possession of theprosecutor, but the prosecutor promptly informed the defendant of the identity of the partywho did have the control or possession of the transcript. It was the defendant who neededthe transcript in order to prepare for the trial, and the transcript was ordered to be preparedat the request of the defendant. The trial court determined that the time required to obtainfrom the court reporter the requested transcript was properly attributable to the defendant. We cannot conclude that the trial court abused its discretion in so determining.

           The defendant argues on appeal that the prosecutor had the burden of using diligent,good-faith efforts to obtain for the defendant the transcript from the court reporter and thataccordingly any delay in obtaining the transcript must be attributed to the State. The recorddoes not reflect whether or not the prosecutor did make a diligent, good-faith effort to obtainthe transcript for the defendant. Perhaps the prosecutor did. It is incumbent upon thedefendant to show that the delay of the trial is not attributable to him, and the record mustaffirmatively establish this fact. Crawford Distributing Co., 78 Ill. 2d at 79. We simplycannot conclude that the trial court abused its discretion in attributing to the defendant thedelay involved in obtaining from the court reporter a transcript of the grand jury proceedings.

           For the foregoing reasons, the judgment of the circuit court of St. Clair County isaffirmed.

           Affirmed.

           DONOVAN, P.J., and GOLDENHERSH, J., concur.