APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 8, 1971.
The defendants, Marie and Irene Plazewski, were found guilty on charges of battery in a bench trial, and each was fined $100.
The defendants took direct appeals from the convictions to the Supreme Court, but these appeals were transferred to this court by order of the Supreme Court. The defendants contend (1) that the filing of new charges eight months after their arrests deprived them (a) of their right to know and have a copy of the charges against them and (b) of their right to a speedy trial; (2) that the filing of unsigned and forged charges vitiates the entire proceedings; (3) that they were deprived of their right to a speedy trial by the failure of the City of Chicago to file a bill of particulars in the time ordered by the court; and (4) that they were not proved guilty beyond a reasonable doubt.
Due to the nature of the contentions raised, we first set forth the circumstances surrounding the defendants' arrests and review the proceedings in the Circuit Court. On April 27, 1968, a large number of individuals marched from Grant Park to the Civic Center as a part of peace-day activities. These demonstrators were permitted to hold a rally for a short time at the Civic Center Plaza, but when the crowd which numbered three to four thousand persons became so large that it was blocking vehicular and pedestrian traffic, the police ordered the demonstrators, who were chanting and yelling, to disperse. After the dispersal order was given, the crowd broke through a rope barrier which encircled an area under repair on the plaza, and the police officer directing the dispersal was struck and injured. At this point, a number of the 150 uniformed police officers who were assigned to crowd control grouped into dispersal formations and started moving the rally participants off of the plaza. A great many arrests arose out of these incidents including those of Marie and Irene Plazewski.
Marie Plazewski was originally charged (1) with disorderly conduct in violation of section 193-1(d) of the Municipal Code of the City of Chicago; (2) with resisting arrest, and (3) with criminal damage to property. Irene Plazewski was originally charged (1) with disorderly conduct and (2) with resisting arrest.
The defendants appeared in court for the first time on May 1, 1968, and presented motions to dismiss all the pending charges. Hearings on these motions were continued to a later date. On May 29, 1968, the motions to dismiss the disorderly conduct charges were denied, but a motion was allowed requiring the City of Chicago to file a bill of particulars with respect to the disorderly conduct charges by June 17, 1968. The matter was then continued on June 17, 1968, to September 9, 1968, and then again to October 29, 1968. At that time, the defendants moved to dismiss all charges for want of prosecution because the bill of particulars had not been presented. The court denied the motion and granted another continuance until January 7, 1969.
After the cause was called on January 7, 1969, and after the defendants had answered ready, the State requested leave to file two additional complaints against each defendant and to have a nolle prosequi entered with respect to the resisting arrest and disorderly conduct charges. The Assistant State's Attorney explained that the pending complaints had been hastily drawn up and signed in the aftermath of the disturbances at the Civic Center on April 27, 1968, by the police officers who transported the defendants from the Civic Center to the police station. He stated that his reason for seeking to file the new amended complaints in the present proceeding was to avoid having the defendants rearrested and resubmitted to bail. The court over the defendants' objections permitted the filing of the new complaints which charged Marie Plazewski with a battery against Detective Patrick Clark and with resistance to an arrest made by him and which charged Irene Plazewski with battery against Officer John J. Napela and resistance to an arrest made by him.
The Assistant State's Attorney recognized that the defense might have been taken by surprise by the new charges, and he suggested that leave be given to the defendants to file a request for a bill of particulars or other appropriate discovery. The cause was then continued by agreement to February 17, 1969. After preliminary motions were heard on February 17, 1969, the cause proceeded to trial before the court on February 19, 1969. The defendants were found guilty on the battery charges.
The defendants initially contend (1) that when they were brought before a magistrate on May 1, 1968, they did not receive copies of the charges against them as required by Section 109-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 109-1), (2) that they were deprived of a right to a speedy trial because the City of Chicago failed to file a bill of particulars with respect to the disorderly conduct charges within a reasonable time, and (3) that the court did not have jurisdiction over them because the original complaints were false, fraudulent, unsigned, or forged.
The battery charges filed on January 7, 1969, of which the defendants were convicted, were based on acts separate and distinct from the alleged acts on which the earlier charges were based. The allegation that Marie Plazewski struck Patrick Clark is fundamentally different from allegations that she failed to obey a dispersal order, that she struck Officer Walter Bortko, or that she defaced a jail wall. The allegation that Irene Plazewski struck John J. Napela is fundamentally different from allegations that she disobeyed a dispersal order or that she resisted Officer Walter Bortko. The initial contention to dismiss even if valid, would not warrant reversal of the battery convictions.
The defendants contend additionally that the filing of the battery charges eight months after their arrests deprived them of their right to a speedy trial as guaranteed in the Sixth Amendment to the United States Constitution and in Article II Section 9 of the Constitution of Illinois 1870. The defendants cite and rely upon People v. Love, 39 Ill.2d 436, 235 N.E.2d 819. In that case, the court considered the contention that a 148 day delay between the filing of a complaint and the arrest of the defendant deprived the defendant of a speedy trial where the delay was without cause or justification. The court after stating 39 Ill.2d at 442, 235 N.E.2d 823, "that in determining whether the right to a swift trial has been observed that the reckoning must be from the time the complaint or other form of accusation is filed, rather than from the time of arrest," held however, that the 148-day delay in arresting the defendant did not deprive him of a speedy trial where there was no suggestion that the delay was intentionally oppressive or purposeful and where there was no showing of prejudice from the delay to the defendant.
The crucial distinction between Love and the present case is that in Love the delay occurred subsequent to the filing of a complaint whereas in the case at bar the delay occurred prior to the initiation of formal proceedings on the battery charges.
Sections 3-5 through 3-8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 3-5 to 3-8) set forth time limitations within which prosecutions of various offenses must be commenced, and it is only under unusual circumstances that the initiation of a prosecution which is not barred by the statute of limitations would constitute a deprivation of the right to a speedy trial. In People v. Hryciuk, 36 Ill.2d 500, 224 N.E.2d 250, cited by defendant, the court rejected the contentions that the constitutional provision for a speedy trial has no application until after a formal prosecution has commenced and that delay before the initiation of formal proceedings is governed exclusively by the statute of limitations. In that case, the defendant, after confessing in 1939 to rape and murder was tried on the rape charge and convicted. In March 1953, the defendant was granted a new trial on the rape charge in post conviction proceedings. On the following day the State indicted the defendant for murder, and the defendant was eventually convicted. The only evidence which was introduced against the defendant in the murder prosecution was the 1939 confession which the defendant contended was involuntary. The defendant's opportunity to cross-examine witnesses on the critical issue of the voluntariness of the confession was diminished because one of the witnesses to the confession was dead and the other two had little personal recollection of it. The court noted that no more evidence was available in 1953 than in 1939, and the delay in prosecuting was deliberate and calculated and ...