APPEAL from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILENGOETTER, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The circuit court of Cook County dismissed, on motion of defendant, Miles Tetter, the indictment charging him with armed robbery for failure to provide defendant with a speedy trial as guaranteed under the State and Federal constitutions. The People originally appealed to the appellate court, but on motion, joined in by defendant, the cause was transferred to this court.
The issue is essentially whether the indictment should be dismissed on the grounds that defendant was denied his right to a speedy trial under section 9 of article II of the Illinois constitution, and under the sixth and fourteenth amendments of the United States constitution.
The facts are largely undisputed. It appears that on July 26, 1966, defendant, Miles Tetter, was arrested for armed robbery and held in custody in the Cook County jail. On August 31, 1966, defendant's family deposited $300 for his $3,000 bail. Defendant was not released, however, but was delivered by the sheriff of Cook County to the military police, pursuant to a military detainer previously lodged against defendant at the Cook County jail. The military police who took custody of defendant signed a record of that fact at the county jail. On September 14, 1966, the grand jury returned the indictment against defendant on the armed robbery charge. At the arraignment on September 27, 1966, defendant did not appear.
The report of those proceedings recites that a co-defendant stated that defendant was at the Great Lakes Naval Center. The assistant State's Attorney explained that when the matter came up the week before, September 20, the co-defendant had made a similar statement, and that when the assistant State's Attorney telephoned the Great Lakes Naval Center, he was told by the director of personnel that there was no one there by the name of Miles Tetter. The court, after inquiry about any alias of Miles Tetter, then declared forfeiture of defendant's bond. Notices of such bond forfeiture were sent by the State's Attorney's office to defendant's home address at 1429 Wallace, Chicago Heights, on September 27 and again on October 28, 1966. The naval records indicate, however, that defendant was in fact at the Great Lakes Naval Center, at least until September 30, 1966, and at some later date was transferred to the custody of the Navy Disciplinary Compound at Portsmouth, New Hampshire, for 6 months.
On October 5, 1966, the chief deputy bailiff sent an arrest warrant for defendant to the Naval authorities at Great Lakes, requesting that it be lodged as a detainer against defendant, and that the sheriff's office be notified when defendant was available. On October 6, 1966, the sheriff's office issued a national stop order for defendant, requesting that he be taken into custody, and indicating the existence of the indictments for armed robbery and bond forfeiture, as well as willingness of the State to undertake extradition.
Sometime in October or November, 1966, defendant allegedly wrote to the chief justice of the criminal court of Cook County, advising him that defendant's family received a letter from the court concerning his State trial and that defendant was in custody of the commanding officer of the United States Navy Disciplinary Compound at Portsmouth, New Hampshire. No such letter, copy, or testimony concerning it, was ever offered in evidence.
On February 27, 1967, defendant was released from Federal custody and discharged from the Navy. He apparently resumed residence in Chicago Heights with his family. The following month defendant was arrested by Federal authorities on a charge involving checks, and was released from custody on his individual bond. On January 11, 1968, the Federal district court placed defendant on 2 years' probation after he pleaded guilty. Defendant claims he first learned of the bail jumping charge from his probation officer.
Defendant was arrested in Chicago Heights on February 20, 1968, and the following day the armed robbery indictment was reinstated, and the State's Attorney after viewing the county jail records nolle prossed the bail jumping indictment. On March 28, 1968, defendant moved to dismiss the armed robbery indictment on the ground that he was denied his constitutional right to a speedy trial; and on May 8, 1968, the motion was granted.
In determining whether the court erred in dismissing the indictment, the dimensions of the constitutional right to a speedy trial, as defined in the cases, must be examined. The United States Supreme Court characterized that right as a "safeguard" to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusations, and to limit possibilities that long delay will impair the ability of the accused to defend himself. (United States v. Ewell, 383 U.S. 116, 120, 15 L.Ed.2d 627, 86 S.Ct. 773.) In Ewell the court deemed "the essential ingredient" to be "orderly expedition and not mere speed." Hence, it concluded that the 19-month delay between the arrest and the hearing on the subsequent indictments, held immediately after defendant's motion to vacate sentence had been granted, did not violate the sixth amendment right to a speedy trial.
That right was examined in depth by the United States Supreme Court in Klopfer v. North Carolina, 386 U.S. 213, 226, 18 L.Ed.2d 1, 87 S.Ct. 988. (See disc. 77 Yale L.J. 767 (1968).) There the right was held enforcible against the States by virtue of the fourteenth amendment and required the State to prosecute a charge which had been indefinitely postponed without justification over accused's objection. The sixth amendment right to a speedy trial was also construed to impose a constitutional duty on the State to make a "diligent good faith effort" to bring defendant to trial on a pending State charge while he was being incarcerated in a Federal penal institution. (Smith v. Hooey (1969), 393 U.S. 374, 383, 21 L.Ed.2d 607.) In Smith the State repeatedly rejected over a 6-year period defendant's motions and requests for trial on a State charge of theft while he was a Federal prisoner. The Texas Supreme Court denied a mandamus order to show cause why the charges should not be dismissed and the United States Supreme Court reversed and remanded the cause to the State for further proceedings "not inconsistent with the opinion." Although the opinion did not dispose of the State charge or declare that the State had forfeited the right to try the petitioner, from the concurring opinions the scope of the remanding order is not unambiguous.
Even before the Smith opinion this court had emphasized the duty of the State to bring to trial a defendant charged with a State crime even though he was imprisoned outside the State, and held that the constitutional guaranty of a speedy trial contemplated that the means that are available to meet its requirements should be used by the State. People v. Bryarly, 23 Ill.2d 313, 319.
In addition to these general observations on the nature of the right to a speedy trial, the four relevant factors for consideration of a claim of denial of the constitutional right to a speedy trial are length of delay, reason for the delay, prejudice to defendant, and his waiver of the right. (United States v. Perez (7th cir., 1968), 398 F.2d 658, 661.) Those factors cannot be considered in isolation, but must be viewed in their totality, as appears from the following cases cited by the State and defendant, in determining whether there was a denial of the constitutional right in any case. In Perez there was a 2-year delay between the time the warrant was served on defendant and when he was taken into custody; the Federal government failed to bring him to trial during his incarceration in a State penitentiary, and merely placed a hold order with the State; and the defendant failed to make any demand for trial. The Court of Appeals for the Seventh Circuit concluded that there was no denial of any constitutional right to a speedy trial to warrant dismissal of the charge.
In People v. Moriarity, 33 Ill.2d 606, this court concluded that the 10-month delay from the date Illinois officials took steps to obtain custody of defendant, after learning he was incarcerated in another State, and the date of his motion for discharge did not constitute such an arbitrary or oppressive delay as to deprive him of his right to a speedy trial. We stated at page 610: "When we consider the time which might have been consumed by extradition processes, together with the impracticality of transferring defendant back and forth between Illinois and Indiana when his sentence in the latter State has so short a time ...