                                                   SIXTH DIVISION
                                                   November 9, 2006



No. 1-04-3314

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
            Plaintiff-Appellee,           )    Cook County
                                          )
     v.                                   )
                                     )
ADAN DELGADO,                             )    Honorable
                                          )    James Linn,
            Defendant-Appellant.          )    Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     In 2004, a grand jury indicted defendant Adan Delgado for

the 1983 murder of Jaime Otero. The trial judge convicted Delgado

of voluntary manslaughter and sentenced him to seven years in

prison following a bench trial. On appeal, defendant contends

that the trial court should have dismissed the indictment due to

unreasonable preindictment delay, the evidence did not prove him

guilty beyond a reasonable doubt, his trial counsel provided

ineffective assistance, and the court imposed an improper

sentence.    We remand to the trial court for completion of the

inquiry into preindictment delay, and we retain jurisdiction to

decide all issues following completion of that hearing.BACKGROUND

     On October 1, 1983, Adan Delgado stabbed Jaime Otero in

front of a bar on Damen Street. Otero died from the wound.    A few

days after the killing, Delgado went to Mexico, where his mother

lived and where he remained until he moved to California.    On

October 16, 1983, the Chicago police department issued a warrant

for Delgado's arrest. In May of 1994, police arrested Delgado in
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San Bernardino, California, for a traffic offense.      When they

discovered the 1983 warrant, the San Bernardino police contacted

officials in Chicago, who declined extradition.

     On February 20, 2004, the Chicago police department assigned

Detective Salvador Esparza to investigate the circumstances

surrounding Otero's death. Esparza contacted Isabel Cruz, a

witness to the incident. After receiving word that Delgado might

be living in California, Esparza contacted the FBI task force. On

April 28, 2004, the task force arrested Delgado at his home in

Ontario, California.   Delgado gave Esparza and a Cook County

assistant State's Attorney a videotaped statement in which he

claimed that he stabbed Otero in self-defense.    Prosecutors then

obtained an indictment charging Delgado with murder.

     Delgado moved to dismiss the indictment due to the excessive

delay between the crime and the indictment.     At the hearing on

the motion, he argued that he had lost key defense witnesses

during the 20 years that had passed between the incident and the

trial:

            "THE COURT: What is the prejudice to him?

            MS. ROSS [Defense counsel]: Prejudice to him,

     Judge, are the witnesses.

            THE COURT: Who? Who did you lose?

            MS. ROSS: Judge, there were witnesses there.

                                 * * *

            THE COURT: Can you name anybody?

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            MS. ROSS: There was a name of one person in

     particular I believe his name was Cohen who Mr. Delgado

     was aware of who lived in the area. He has no further

     name for him.

            THE COURT: What is Mr. Cohen going to say?

            MS. ROSS: Mr. Cohen is going to say there was a

     fight and that was self defense, which is of course Mr.

     Delgado's affirmative defense."

     The trial judge denied Delgado's motion to dismiss the

indictment:

            "THE COURT:   *** I don't find that is a bad faith

     manipulation of speedy trial rights.

            He was stopped in California. He was not

     extradited. Government acknowledged they didn't have

     any witnesses. There is no statute of limitations in

     murder. Only one bite the government will ever get at

     the apple.

            Taking advantage of the fact there is no statute

     of limitations that they relocated some witnesses at

     later time, I don't find this is some manipulation of

     his rights to speedy trial act or anything of the

     sort."

     The court held Delgado's bench trial on September 13, 2004.

The trial judge found that Delgado believed, unreasonably, that

he needed to use deadly force to defend himself.     Accordingly,

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the court found defendant guilty of voluntary manslaughter.

                              ANALYSIS

     Defendant argues that the circuit court erred in denying his

motion to dismiss the indictment based on an unreasonable pre-

indictment delay of 21 years. The prosecution responds that

defendant has failed to satisfy the applicable test our supreme

court set forth in People v. Lawson, 67 Ill. 2d 449 (1977).    Our

supreme court said:

     "Where there has been a delay between an alleged crime

     and indictment or arrest or accusation, the defendant

     must come forward with a clear showing of actual and

     substantial prejudice. Mere assertion of inability to

     recall is insufficient. If the accused satisfies the

     trial court that he or she has been substantially

     prejudiced by the delay, then the burden shifts to the

     State to show the reasonableness, if not the necessity

     of the delay.

            If this two-step process ascertains both

     substantial prejudice and reasonableness of a delay,

     then the court must make a determination based upon a

     balancing of the interests of the defendant and the

     public. Factors the court should consider, among

     others, are the length of the delay and the seriousness

     of the crime." (Emphasis in original.) Lawson, 67 Ill.

     2d at 459.

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     Both parties contend that we have the authority to apply the

Lawson test de novo.      "[T]he ultimate determination of whether a

defendant's constitutional speedy-trial right has been violated

is subject to de novo review."      People v. Crane, 195 Ill. 2d 42,

52 (2001).      However, we will uphold the trial court's factual

determinations unless they are against the manifest weight of the

evidence.      Crane, 195 Ill. 2d at 51.

     "The task of judging when a delay has caused actual

prejudice, or whether the delay was reasonable, or which of the

competing interests outweighs the other in attempting to balance

one against the other, is a difficult duty."      People v. Gulley,
83 Ill. App. 3d 1066, 1069 (1980).       Ordinarily, in reviewing the

action of the trial court we would carefully examine the trial

court's application of each element of the Lawson test to

determine whether the trial court erred.       Gulley, 83 Ill. App. 3d

at 1069.      In this case, however, we cannot review the application

of Lawson because the trial court failed to apply it altogether.

     The trial court in People v. Kennedy, 39 Ill. App. 3d 323

(1976), had to decide whether a lengthy preindictment delay

denied the defendant his right to due process.      The court held

that the prosecutors violated the defendant's constitutional

right to a speedy trial and dismissed the indictment on that

basis.      On appeal the defendant conceded that the right to a

speedy trial had no bearing on the case.      He argued instead that

the trial court correctly found that he suffered prejudice due to

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the long delay between the offense and the indictment and,

therefore, the appellate court should affirm the dismissal of the

indictment.    The appellate court noted that the trial court

purported to decide only the speedy trial issue.     The court

concluded:

     "A determination that defendant's due process right has

     been violated involves issues of fact and it is

     axiomatic that a reviewing court will not resolve

     questions of fact.

             Accordingly, the judgment of the circuit court ***

     [is] reversed and the cause remanded for further

     proceedings."    Kennedy, 39 Ill. App. 3d at 325.
Following Kennedy, we remand for the trial court to make

appropriate findings for each step of the Lawson inquiry.

     Defendant raises several other issues on appeal.    In similar

circumstances, involving remand for completion of a factual

inquiry, some courts have limited the remand and delayed decision

on other issues.

     In People v. Martinez, 317 Ill. App. 3d 1040, 1042 (2000),
the defendant objected when the prosecutor excused a black

venireperson because the venireperson regularly read a certain

newspaper.    The trial court held that the prosecutor gave a race-

neutral explanation and on that basis overruled the defense

objection.    The appellate court held that the trial court failed

to complete the proper analysis because the court "never

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evaluated, pursuant to the third step set forth in Batson [v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)],

the genuineness or persuasiveness of the State's proffered

reasons."    Martinez, 317 Ill. App. 3d at 1045.       The appellate

court remanded the cause to the trial court "for the limited

purpose of allowing the trial court to conduct the proper Batson

analysis."    Martinez, 317 Ill. App. 3d at 1046.

     Our supreme court has instructed us that when we remand for

further proceedings pursuant to Batson, we should retain
jurisdiction and announce our judgment on all issues following

the completion of the Batson hearing.      People v. Garrett, 139

Ill. 2d 189, 194-95 (1990).     We follow the same procedure here.

Thus, we retain jurisdiction in this case and we will announce

our judgment on all issues following the completion of the Lawson

inquiry. This opinion does not finally dispose of any issues.

                              CONCLUSION

     Because the trial court failed to apply the proper Lawson

analysis in determining whether the preindictment delay of over

20 years violated defendant's due process rights, we remand for

application of Lawson.    We retain jurisdiction, and we will

resolve all issues following completion of further proceedings in

the trial court.

     Remanded with instructions.

     FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.



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