People v. Thomas

                               NO. 5-96-0288

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the
                                    )  Circuit Court of 
     Plaintiff-Appellee,            )  St. Clair County.
                                    )  
v.                                  )  No. 94-CF-324
                                    )
TERRON THOMAS,                      )  Honorable
                                    )  Lloyd A. Cueto,
     Defendant-Appellant.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     After a jury trial, defendant, Terron Thomas, was found guilty
of first-degree murder (720 ILCS 5/9-1(a)(1) (West 1992)) and
aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West
1992)).  Defendant was sentenced to 50 years in the Department of
Corrections for first-degree murder and 15 years in the Department
of Corrections for aggravated discharge of a firearm, with the
sentences to run concurrently.  On appeal, defendant contends that
(1) the trial court erred in allowing into evidence numerous
hearsay statements, (2) the trial court erred in denying
defendant's motion for a mistrial on the basis that two of the
jurors read or heard of a newspaper article that reported that one
of the victims, Kimberly Stewart, was a judge's niece and that
defendant's coconspirator had already been convicted of the murder
of the other victim, Mitchell Lofton, (3) the trial court erred in
denying defendant's motion for a new trial, based on the fact that
one of the jurors failed to disclose that she knew defendant's
mother, an announced witness at trial, and (4) the trial court
erred in denying defendant's motion to dismiss because the delay of
one year between defendant's indictment and arraignment violated
defendant's sixth amendment right to a speedy trial (U.S. Const.,
amend. VI).  We affirm.  
                                   FACTS
     On November 9, 1993, the victims, Mitchell Lofton and his
girlfriend, Kimberly Stewart, were each shot several times by two
gunmen, identified by Kimberly as Julius Phillips, also known as
"Hobo", and defendant.  Mitchell died at the scene, but Kimberly
recovered from her wounds after spending two months in a hospital. 
On April 21, 1994, defendant was charged with the above-mentioned
offenses, and an arrest warrant was issued.  On May 27, 1994,
defendant was indicted on the same two offenses.  The warrant was
served on defendant on June 6, 1995.  Defendant was apparently
incarcerated in Missouri beginning in March 1994 and was extradited
to Illinois on June 6, 1995, when the arrest warrant was signed. 
Prior to trial, defense counsel filed a motion to dismiss on the
ground that defendant was denied his right to a speedy trial
because the East St. Louis Police Department knew or should have
known defendant's address or whereabouts and the delay between his
charging on April 21, 1994, and subsequent arrest and arraignment
on June 8, 1995, was due solely to the negligence of the State of
Illinois.  After an evidentiary hearing on this motion, the trial
court denied the motion to dismiss.  The trial commenced on
February 5, 1996.  
     At defendant's trial, Kimberly testified that she and Mitchell
dated since 1991.  By November 1993, the two were living together
in St. Louis and had a son.  Kimberly knew both Hobo and defendant
and saw them on a regular basis.  Hobo's brother, Andre Phillips,
was the boyfriend of Kimberly's sister, Monica Stewart.  Andre was
also the best friend of the victim, Mitchell.  Hobo's other
brother, Craig, dated Kimberly's other sister, Janine.  Hobo's
sister, Rekinda, dated defendant.  Thus, all the parties in this
case were somehow connected to the Phillips family.  All of these
people socialized together, usually at the home of Monica Stewart. 
Kimberly estimated that she saw defendant every other day for the
previous three years; however, Kimberly knew defendant only as
"Terry."  She did not know where he lived.  
     Mitchell was a known drug dealer, and the crimes in question
apparently arose over drug money.  At approximately 6 p.m. on the
date in question, Kimberly and Mitchell were driving in Kimberly's
car heading east on Interstate 70 from St. Louis to East St. Louis
to pick up Kimberly's son.  They saw defendant and Hobo in a small
white four-door car coming onto the Kingshighway exit.  Hobo
motioned for them to pull over to the side of the road.  Mitchell
then got out of the car and talked with defendant and Hobo.  When
Mitchell returned to Kimberly's car, he told her that Hobo and
Terry were going to follow them to East St. Louis.  Mitchell then
drove Kimberly's car to Michael Hodges' house.  Hodges was
Mitchell's brother.  Mitchell spoke with defendant, Hobo, and 
Hodges.  Mitchell also visited his aunt, who lived next door to
Hodges.  
     Sonetta Bland, Hodges' girlfriend, testified at trial that she
was present when Mitchell stopped by Hodges' home.  She saw two
cars at that time, the car Kimberly and Mitchell occupied and a
white car with Missouri plates.  The white car was behind the car
Mitchell and Kimberly occupied and was occupied by two males. 
Bland testified that Mitchell drove away in the white car with its
two other occupants and that Kimberly followed in her car.
     Kimberly testified that when Mitchell returned to the car, he
told her that he was going to his mother's house, that Hobo and
defendant wanted him to ride with them, and that Kimberly should
follow.  Kimberly followed the car in which defendant was an
occupant until it stopped in Jones Park in East St. Louis.  Hobo
was driving, defendant was seated in the passenger side, and
Mitchell was in the back seat of the car.  Kimberly saw all three
exit and go to the rear of the vehicle.  Kimberly thought Mitchell
was going to reenter her vehicle, so she slid to the passenger side
of her car.  She then heard either defendant or Hobo say, "Give it
up."  She saw Hobo and defendant pull out handguns and heard four
gunshots.  She saw flashes come from the guns held by both Hobo and
defendant.  Kimberly estimated she was a half a car length away
when the shooting occurred.  Kimberly testified that after Mitchell
was shot, defendant came to the driver's side of her car and
started shooting at her.  She crouched down on the passenger side
of the car and tried to cover herself, but defendant kept shooting. 
She was shot 12 times.  She heard Hobo say, "Come on, come on Man,
she's dead."  She heard four more shots, and then Hobo and
defendant left in the white car.  
     After her attackers left, Kimberly started her own car and
tried to drive away.  She did not see Mitchell.  She lost control
of the car and ran into a hole.  A man she did not know came to the
car and said he would get her help.  She was bleeding profusely and
thought she was going to die.  Two women came up to the car,
retrieved her purse, and took it to her grandmother's house. 
Kimberly testified that she told the emergency medical workers who
came to the scene that Hobo and Rekinda's boyfriend shot her.  An
ambulance then took her to the hospital, where she remained for two
months.  She had bullet wounds from her breasts down to her thighs. 
The police interviewed her at the hospital.  In April 1994, she
went to the East St. Louis police station and talked to Detective
Delbert Marion.  She was shown approximately 125 photographs and
picked out defendant as one of her assailants.
     Monica Stewart testified that she knew defendant and saw him
on almost a daily basis.  Monica testified that she gave the police
Hobo's real name and address on the day of the murder.  She did not
give the police defendant's name until April 7, 1994, when she
mistakenly thought defendant was one of four men following her. 
Monica also testified that Kimberly had tubes in her mouth for the
first week she was in the hospital.  Within a week, the tubing was
removed, and Kimberly told Monica that Hobo and defendant did it. 
On cross-examination, she testified that she did not tell Officer
Lenzie Stewart, the officer originally investigating the crime,
that her sister had now named defendant as a suspect, because
Officer Stewart was out of town.  She did, however, tell Sergeant
Anderson of the East St. Louis Police Department.
     Dr. Harry Parks, a pathologist, found 11 bullet wounds in
Mitchell's body.  He recovered three bullets from inside the body. 
Dr. Parks testified that the cause of death was two gunshot wounds
to the head.  
     Patricia Johnson, a crime-scene technician, testified that
when she arrived on the scene, she found Mitchell lying in a vacant
lot approximately 200 feet from Kimberly's car.  The car's driver's
side window was shot out, and there was blood on the inside. 
Numerous casings and bullets were recovered at the scene.  At the
morgue, Johnson retrieved approximately $3,200 in cash, which was
stuck deep into the right pocket of Mitchell's jacket.
     On April 13, 1994, Officer Aubrey Keller of the East St. Louis
Police Department interviewed Kimberly about the November 9, 1993,
shooting.  Detective Delbert Marion was also present at the time. 
When the interview started, defendant was not a suspect.  Kimberly
was shown approximately 125 color photographs and was asked if any
of these men were involved in the shooting.  According to both
Keller and Marion, Kimberly picked out defendant's photograph and
said she was absolutely certain he was the shooter.  Six days prior
to the photo identification, Monica Stewart reported that she
thought defendant had been following her.  Monica later pointed out
defendant's home in East St. Louis.  During the cross-examination
of Detective Marion, he testified that his written report contained
information reported to him by Kimberly that defendant shot into
the car window on the passenger side and that Hobo shot at her
through the driver's side.  
     Because the case remained unsolved, the Violent Crimes Task
Force was contacted to assist the East St. Louis Police Department
in the investigation.  Specifically, Craig Koehler, an agent with
the Illinois State Police, Internal Investigations, was brought in
to assist in the investigation.  He interviewed Kimberly and
retraced the route she traveled with Mitchell on the day of the
shooting.  Koehler testified that initial police reports listed the
name "Hobo" as a suspect, while the name "Terry" as a potential
suspect did not arise until a week after the shooting.  According
to Koehler, Kimberly told him she was always certain defendant was
one of the two men involved, but she was not certain that his name
was Terry.  The information he gathered from those people who
originally arrived on the scene was that a person named "Hobo" shot
her.  
     Lenzie Stewart, an East St. Louis police officer who was the
original detective on the case, testified that two suspects were
developed during his initial investigation.  On the night of the
shooting, the emergency medical technician (EMT) who took Kimberly
to the hospital notified him that Kimberly reported that a person
named "Hobo" was the assailant.  Detective Stewart went to the
hospital to attempt to interview Kimberly on the night of the
shooting, but once there he made no effort to talk to her; he
stated, "[I]t was apparent to me that she was laboring for her
life."  In time, Janine Stewart gave Detective Stewart enough
information for him to determine Hobo's real name and whereabouts. 
Hobo was arrested on December 9, 1993.  On November 17, 1993,
Detective Stewart interviewed Kimberly at the hospital, at which
time she was in critical condition and on medication.  She
identified the other assailant as "Terry."  She identified "Terry"
as Rekinda's boyfriend.  Detective Stewart testified that Kimberly
was uncertain only of defendant's real name, not of defendant's
identity or of his involvement in the instant crimes.  
     Rekinda Phillips testified at trial that defendant was her
former boyfriend and the father of her daughter and that Hobo is
her brother.  Rekinda stated that on November 9, 1993, defendant
and Hobo were at her house in St. Louis.  Defendant left her house
around 7:15 p.m., and Hobo remained there another 30 to 45 minutes. 
Rekinda left her home at approximately 8 p.m.  Rekinda testified
that she knew Kimberly, Monica, and Janine Stewart and that all
three knew where she lived with defendant.  She also testified that
Monica knew that her baby's name was Brandy Thomas.  However, at
trial, Monica Stewart denied knowing Rekinda's baby's name. 
Rekinda also stated that Monica knew defendant's name and knew
where defendant and Rekinda lived because she dropped Rekinda off
at her house.  Rekinda further testified that Kimberly was with
Monica on at least a few occasions when Monica took Rekinda to the
house.
     Defendant presented evidence that he was incarcerated in the
St. Louis City Jail during the time Monica Stewart mistakenly
believed he was following her.  
     Andre Phillips, brother of Hobo and Rekinda, best friend of
the victim Mitchell, and boyfriend of Monica Stewart on November 9,
1993, testified on defendant's behalf.  Andre had a 1982 conviction
for selling drugs.  He testified that Mitchell was a drug dealer
and that Kimberly sometimes carried money for Mitchell for drug
transactions.  According to Andre, Kimberly, Monica, and Janine
Stewart were all familiar with defendant, but he admitted that all
three may have only known him as "Terry."  However, according to
Andre, Monica knew defendant's last name and had even visited his
home.  Andre testified that Monica never questioned him about
defendant after the murder of Mitchell and the shooting of
Kimberly.  
     Dina Thomas, defendant's aunt, testified that on November 9,
1993, defendant came by her apartment in St. Louis at approximately
7:20 or 7:30 p.m. and stayed until 9:15 p.m.  According to Thomas,
defendant looked neither nervous nor suspicious that night.  
     Mary Thomas, defendant's sister, testified that she saw
defendant at approximately 9 p.m. on November 9, 1993, and they had
a normal conversation.  She admitted on cross-examination that she
did not know where defendant was prior to 9 p.m.
     Patricia Thomas, defendant's mother, testified that defendant
lived with her and that they had spent a typical day on November 9,
1993.  Hobo was at her house the afternoon of the shooting.  She
learned of the shooting shortly after November 9, 1993, and after
Hobo's arrest in December 1993 she heard of defendant's suspected
involvement.  
     August Manso was an East St. Louis police officer and also
worked as an EMT.  In his capacity as an EMT, he arrived at the
shooting scene, at which time Kimberly told him that she was shot
by a person named "Hobo."  She did not mention defendant's name,
but she did indicate that there were two men involved in the
shooting.  Manso's report indicated that Kimberly's sister might be
able to identify the second subject.
     Samarian Tillman lived near Jones Park and arrived on the
scene after the shooting.  She said that it was dark outside, and
she and a friend came across Kimberly's car, which they believed
had been in an accident.  They stopped and Kimberly told them:
"Hobo did this.  My sister will know everything."  Kelsie Crain,
who also lived close to Jones Park, called 9-1-1 after he heard
shots and saw Kimberly's condition.  He waited with Kimberly for
the ambulance to arrive.  Kimberly told him that Hobo had shot her.
She only mentioned the name "Hobo".  On cross-examination, Crain
admitted that he told Officer Koehler that Kimberly told him that
her boyfriend was dead and that her sister or best friend dated
Hobo and that it was hard to understand her because she was
rambling.
     After hearing all the evidence, the jury convicted defendant
on both charges.  He was sentenced to the Department of
Corrections.  Defendant now appeals.
                                 ANALYSIS
     Defendant first contends that the trial court erred in
allowing into evidence numerous hearsay statements by the State's
witnesses.  Defendant specifically objects to the following
statements.  First, Monica Stewart was allowed to testify that
after the tubes were removed from Kimberly's mouth, Kimberly told
her that "Hobo" and "Terry, Rekinda's boyfriend," shot her and
Mitchell.  Second, Kimberly was allowed to testify that Mitchell
spoke with the occupants of the white car while they were parked
off Interstate 70 and that he then told Kimberly that Hobo and
defendant were going to follow them to East St. Louis.  Defendant
contends that this hearsay evidence was offered for the purpose of
placing defendant in the white car with Hobo.  Third, Kimberly was
allowed to testify that Mitchell told her he was going to go from
Hodges' house to his mother's house and that defendant and Hobo
wanted him to ride with them.  Again, defendant contends that the
purpose of offering this statement was to prove that defendant was
in the white car with Hobo and that they were going to meet with
Mitchell again.  The State responds that these statements by the
victim were all admissible under well-established exceptions to the
hearsay rule.  We agree with the State.
     In People v. Clark, 52 Ill. 2d 374, 388-90, 288 N.E.2d 363,
371 (1972), our supreme court explained that the general rule is
that even though a witness may be present in court and subject to
cross-examination, he may not testify as to statements he made out
of court for the purpose of corroborating his testimony given at
trial relative to the same subject.  The Clark court went on to
explain that there are two exceptions to this general rule, namely,
to rebut a charge or inference that the witness is motivated to
testify falsely or to show that the witness's in-court testimony is
a recent fabrication.
     In the instant case, a review of the record indicates that the
inferences defendant tried to draw throughout the trial were that
Kimberly's identification of defendant was a recent fabrication and
that at the time of the attack Kimberly identified only "Hobo" as
her attacker.  The defense attempted to show that Kimberly did not
make an identification of defendant until five months after the
attack.  The State rebutted this charge with Monica's testimony
that Kimberly identified "Terry" as her attacker as soon as the
tubes were taken out of her mouth at the hospital.  Such evidence
clearly falls within the recent-fabrication exception noted above
and was properly admitted.
     We agree with the State that recent case law indicates that
the hearsay rule does not apply to evidence of a relevant out-of-
court statement when the declarant testifies and is subject to
cross-examination.  In People v. Rogers, 81 Ill. 2d 571, 411 N.E.2d 223 (1980), our supreme court set forth the rules governing the
admissibility of the evidence in question here as follows:
     "If a third person were to testify that he saw or heard A
     identify B as the person who committed the offense, that would
     obviously and clearly be hearsay testimony and would not be
     admissible.  However, if A testifies that he previously
     identified B and his veracity is tested by cross-examination,
     the reason for excluding the third person's testimony has been
     removed.  The third person should then be permitted to testify
     that he heard or saw A identify B because both A and the third
     person would be subject to cross-examination concerning the
     out-of-court identification.  Evidence of such out-of-court
     identification by both A and the third person should be
     admissible but should be used only in corroboration of in-
     court identifications and not as substantive evidence.  Before
     the third person is permitted to testify as to A's
     identification of B, A should first testify as to his out-of-
     court identification."  Rogers, 81 Ill. 2d  at 579, 411 N.E.2d 
     at 227.
     In section 115-12 of the Code of Criminal Procedure of 1963,
our General Assembly has gone so far as to say that such statements
may be used as substantive evidence.  725 ILCS 5/115-12 (West
1994).
     In the instant case, Kimberly, under oath, identified
defendant, "Terry," as her attacker.  She was subject to cross-
examination.  Kimberly's sister Monica then testified as to the
fact that immediately after tubes were removed from Kimberly's
mouth in the hospital, her sister told her that "Terry" was her
attacker.  Monica was also subject to cross-examination.  This type
of testimony is permissible under Rogers.  81 Ill. 2d  at 578-79,
411 N.E.2d  at 227; see also People v. Shum, 117 Ill. 2d 317, 342,
512 N.E.2d 1183, 1190-91 (1987).
     Defendant further argues that Kimberly was improperly allowed
to testify that Mitchell told her that the two occupants of the
white car, Hobo and defendant, told him that they were going to
follow Mitchell and Kimberly to East St. Louis, that Mitchell told
her he was going to go from Hodges' house to his mother's house,
and that defendant and Hobo wanted him to ride with them. 
Defendant contends that such evidence was offered only for the
purpose of placing defendant in the white car with Hobo.  We
disagree.
     Any out-of-court statement offered to prove the truth of the
matter asserted therein is hearsay and inadmissible.  People v.
Szudy, 262 Ill. App. 3d 695, 711, 635 N.E.2d 801, 811 (1994). 
However, out-of-court statements offered to prove their effect on
a listener's mind or offered to show why the listener subsequently
acted as he or she did are not hearsay and are admissible.  262
Ill. App. 3d at 711, 635 N.E.2d  at 811.  A review of the testimony
in question shows that the statements by Mitchell were not
inadmissible hearsay because they were not offered to prove the
matter asserted but were used to explain a sequence of events and
show why Mitchell and Kimberly acted as they did.  Accordingly, we
find no error in the admission of this evidence.
     Defendant next contends that the trial court erred in denying
defendant's motion for a mistrial, on the basis that two of the
jurors read or heard of a newspaper article which reported that 
Kimberly was the niece of a judge and that defendant's
coconspirator, Hobo, had already been convicted of the murder of
Mitchell. 
     The record reveals that during lunch on the second day of
trial, a juror, Dina Garner, was approached by two men who were
also summoned for jury duty but who were not on the instant panel. 
They asked to see Garner's newspaper, which she had not yet read. 
The newspaper included an article about the instant case.  One of
the men said, "Here's that case, I bet you're on this one."  He
also said, "That's the case where the judge's niece broke down
crying on the stand the other day."  Garner replied that she did
not know what they were talking about, and she threw that portion
of the newspaper away without reading it.  Garner immediately
reported the episode to the judge.  Upon questioning by the judge,
Garner insisted that the incident would not affect her verdict. 
The trial judge individually voir-dired the remaining members of
the panel to find out whether anyone read the article.  One juror,
Janet Keller, admitted to reading the beginning of the article but
reported that once she realized the article concerned the case she
was deciding, she stopped reading it.  Keller also asserted that
reading that small portion of the article would not affect her
ability to be fair and impartial.  The trial judge admonished
Keller not to read the local section of the newspaper in the coming
week.  The judge also admonished jurors Garner and Keller not to
discuss what they read or the fact that they knew that one of the
witnesses was a judge's niece.  Defendant's attorney noted that the
article also contained information that Hobo had already been
convicted of Mitchell's murder, and counsel moved for a mistrial
based upon contamination of the jury.  Defendant's motion was
denied.  
     Defendant argues that because the newspaper article noted that
Kimberly was the niece of a judge and that at least one juror was
made aware of this, Kimberly's status and credibility would be
elevated.  Second, defendant argues that the fact the jury members
were privy to the information that Hobo had already been tried and
convicted of the instant crimes was prejudicial to him.  Third,
defendant argues that the judge never inquired into what other
information was contained in the article, which means there could
have been even more prejudicial information contained in the
article.  Defendant insists that the admonishments were inadequate
and that he was denied a fair trial.  We are unconvinced by
defendant's arguments.  
     The standard to be applied in determining whether to reverse
based upon a tainted jury is whether it reasonably appears that at
least some of the jurors have been influenced or prejudiced so that
they cannot be fair and impartial.  People v. Malmenato, 14 Ill. 2d 52, 150 N.E.2d 806 (1958).  The burden falls on the party
challenging the juror to show that he has a disqualifying state of
mind; mere suspicion of partiality is not enough.  People v.
Jarnagan, 154 Ill. App. 3d 187, 197, 506 N.E.2d 715, 722 (1987). 
The decision whether to grant a mistrial based upon the fact that
jurors read a newspaper article concerning the trial at hand is
left to the sound discretion of the trial court.  People v. Watson,
263 Ill. App. 3d 551, 557, 635 N.E.2d 795, 799 (1994).  
     After reviewing the record in the instant case, we cannot say
that the trial court abused its discretion in refusing to grant a
mistrial.  Juror Garner was conscientious enough to report the
incident in which it was disclosed to her that one of the witnesses
was the niece of a judge.  This indicates to us that she most
likely would have told the judge she could no longer be fair and
impartial if that were the case.  Likewise, Juror Keller was
straightforward and admitted to reading the first part of an
article concerning the instant case.  Defendant argues that we are
not aware of what other prejudicial information might have been
contained in the article, but the burden fell on him to show that
these jurors were no longer fair and impartial.  Defendant should
have included a copy of that article for the record.  The record
before us does not support defendant's allegations.  Finally, we
agree with the State that even if some of the jurors possessed
knowledge of Hobo's conviction, this alone does not prejudice
defendant; it supports defendant's theory at trial that Hobo was
guilty and defendant was not.  Accordingly, we cannot say that the
trial court abused its discretion in failing to grant a mistrial.
     Defendant next asserts that the trial court erred in denying
his motion for a new trial, based upon the fact that one of the
jurors failed to disclose that she knew defendant's mother, an
announced witness at trial.  Defendant claims that the juror, Mary
Gilliam, inadvertently gave false information by not disclosing
during voir dire that she knew defendant's mother.  Defendant
further claims that Gilliam bears animosity toward his mother and
that therefore he was prejudiced by her presence on the jury.  We
disagree.  
     A juror's failure to reveal potentially prejudicial
information during voir dire or even a juror's false testimony
during voir dire does not automatically entitle the defendant to a
new trial.  Defendant must show that prejudice resulted.  Pekelder
v. Edgewater Automotive Co., 68 Ill. 2d 136, 139, 368 N.E.2d 900,
901 (1977).  Where a defendant does not learn of facts which might
support a finding of partiality by a juror until after a verdict is
reached, a posttrial evidentiary hearing may be in order.  People
v. Witte, 115 Ill. App. 3d 20, 30, 449 N.E.2d 966, 973 (1983).  The
determination of whether to grant a new trial on this basis is
within the sound discretion of the trial court and will not be
disturbed on appeal unless a clear abuse of discretion is shown. 
Pekelder, 68 Ill. 2d  at 139, 368 N.E.2d  at 901; People v. Hunt, 112
Ill. App. 3d 138, 141, 445 N.E.2d 408, 411 (1983).
     In the instant case, the trial court correctly held an
evidentiary hearing after defendant raised the issue of Gilliam's
partiality.  Both Gilliam and defendant's mother testified.  The
gist of their relationship was that they both worked at the same
place of business, but on separate shifts.  According to Gilliam,
she was not even aware that she knew defendant's mother until
sometime after she testified.  The mother herself testified that
she knew Gilliam but only said "Hello" and "Goodbye" to her
occasionally.  While defendant's mother alleged a general hostility
in the work environment, it was clear from her testimony that this
was not due to Gilliam specifically, but rather to the overall
atmosphere on the job.  The trial court found that defendant did
not meet his burden of proof and, thus, was not entitled to a new
trial.  After reviewing the record, we cannot say that the trial
court abused its discretion, and we will not order a new trial on
these grounds.
     The final contention raised by defendant is that the trial
court erred in denying defendant's motion to dismiss, because the
delay of one year between defendant's indictment and arraignment
violated defendant's sixth amendment right to a speedy trial (U.S.
Const., amend. VI).  The State replies that defendant's arraignment
was delayed for one year because he was in the custody of another
state awaiting trial on an unrelated murder charge and that
therefore the delay was justifiable and not a violation of
defendant's right to a speedy trial.  We agree with the State.  
     In order to determine whether a breach of the constitutional
right to a speedy trial has occurred, four factors are to be
considered:  (1) the length of the delay, (2) the reasons for the
delay, (3) the prejudice to defendant, and (4) whether defendant
waived the right.  People v. Jones, 104 Ill. 2d 268, 286, 472 N.E.2d 455, 463 (1984); see also Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).  
     Defendant was indicted on May 27, 1994, at which time he was
in a Missouri jail awaiting trial on an unrelated murder charge. 
Defendant was found guilty of manslaughter and armed criminal
action in Missouri on March 16, 1995, and was sentenced on those
charges on April 21, 1995.  Defendant was transferred to Illinois
on June 6, 1995, and was arraigned on the instant charges on June
8, 1995.  The record does not indicate that defendant ever demanded
extradition to Illinois on the instant charges.  Furthermore, Agent
Koehler testified at a hearing on defendant's motion to dismiss
that Missouri authorities would not allow defendant out of their
custody until he was tried on the charges pending in Missouri. 
This evidence was unrebutted by defendant.  We believe that the
reason for the delay was justifiable.
     Additionally, defendant fails to set forth any evidence that
his defense was hindered by the delay.  The record reflects no
prejudice.  At the hearing on defendant's motion to dismiss,
defense counsel argued that the articulable prejudice to defendant
was that the first two witnesses on the scene, Samarian Tillman and
Kelsie Crain, who could offer exculpatory testimony, would not be
available.  However, both these witnesses testified for defendant
at trial.  Additionally, defendant was able to offer the alibi
testimony of family members.  Given these facts, we find that
defendant's constitutional right to a speedy trial was not
violated.
     For the foregoing reasons, the judgment of the circuit court
of St. Clair County is affirmed.

     Affirmed.

     CHAPMAN and MAAG, JJ., concur.