APPEAL from the Circuit Court of Fulton County; the Hon. KEITH
F. SCOTT, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The jury found John Gray, defendant, guilty of reckless homicide for which offense he was sentenced by the Circuit Court of Fulton County to a term of from 1 to 3 years in the penitentiary from which judgment and sentence he appeals.
On August 5, 1967, defendant was driving his automobile in a west by southwest direction on Route 100 on the outskirts of the village of St. David, Fulton County, Illinois. His automobile collided with a Honda motorcycle at a point where Route 100 intersected a coal haulage road. The accident occurred on a dark night in an area that was not illuminated by artificial lights. The road on which the accident took place was straight and flat. At the time of the collision another vehicle was proceeding in the opposite direction. Two of the occupants of the vehicle testified for the State and two for the defendant. As a result of the collision the operator of the Honda, Roger Lidwell, sixteen years of age, sustained injuries from which injuries he died.
On this appeal defendant argues he was denied a speedy trial, he was not proved guilty beyond a reasonable doubt, he did not receive a fair trial because of trial errors and the sentence imposed was excessive.
We shall first consider defendant's argument that he was denied a speedy trial in violation of Article 1, Sec. 12, Ill. Constitution, 1970 and the Sixth and Fourteenth Amendments of the Federal Constitution. As disclosed by the record the incident which is the basis of the charge occurred on August 5, 1967. Defendant was indicted on October 4, 1967, and first appeared in court on December 12, 1967, at which time bail was fixed and defendant, complying with the conditions thereof, was released. On January 19, 1968, defendant first appeared with privately retained counsel. By motion filed January 24, 1968, and amendments filed February 28, 1968, defendant sought dismissal of the charges or some of them. On February 29, 1968, the dismissal motion was heard, taken under advisement and on March 7, 1968, two counts of the indictment were dismissed and the motion was denied as to the other two counts of the indictment. Also on January 24, 1968, defendant moved for the production of the names of witnesses and for the production of any confession, the State filing its response thereto on March 12, 1968. On April 1, 1968, defendant was arraigned and pleaded not guilty to each of the counts of the indictment, the court advising the State that an election would have to be made when the case was set for trial as to which of the counts would be prosecuted. The docket entry on April 1, 1968, is silent concerning any continuance either generally, to a particular term of court or to a date certain.
According to the record nothing occurred after April 1, 1968, until April 1, 1969, when defendant's counsel filed his petition informing the court that in the November election of 1968 he had been elected State's Attorney for Fulton County and he therefore requested leave to withdraw as counsel for the defendant. On the same day defendant's counsel was permitted to withdraw as his attorney and Arthur Young was appointed special prosecutor. On April 17, 1969, defendant appeared pro se, indicated that he was indigent and the public defender, Walter Sebo, was appointed to represent him. On this date, June 1, 1969, was designated as the last date for filing motions and "cause continued".
Nothing happened for over two years, the record being barren of any motions, orders or appearances of the parties until April 5, 1971, at which time defendant's attorney moved to dismiss the charge alleging defendant had not been placed on trial in compliance with Sec. 103-5, chap. 38, Ill. Rev. Stat. 1963. By separate motion on the same date defendant's counsel moved for the production of the names of witnesses, statements and other evidence. The motion to dismiss the charges was denied, parts of the discovery motion were granted and denied and the trial commenced on May 10, 1971. Prior to trial on May 10, 1971, defendant orally moved for dismissal of the charges for want of prosecution which was denied. Such order as well as the preceding conduct detailed above is the basis for defendant's claim that he was denied a speedy trial. On and after April, 1969, Arthur Young, as special prosecutor and Walter Sebo, public defender, acted as counsel for the State and defendant respectively and have continued in such capacities on this appeal.
It is undisputed that prior to trial defendant was not incarcerated, was free on bail during the entire period prior to his trial and that no demand for trial was ever made by defendant as provided in sec. 103-5, ch. 38, Ill. Rev. Stat. 1963, (present sec. 103-5 (b), Ill. Rev. Stat. 1971). It is equally undisputed that during the period April 1, 1968, to April 5, 1971, nothing transpired except the substitution of attorneys for defendant and the appointment of a special prosecutor, occurring in April, 1969. Nor is it disputed that over three years nine months elapsed between the commission of the offense (August 5, 1967) and commencement of trial (May 10, 1971).
On this appeal defendant does not claim that his trial was precluded by sec. 103-5, ch. 38, Ill. Rev. Stat. 1963, because admittedly he made no demand for trial as required by said section. Rather, in reliance upon People v. Love, 39 Ill.2d 436, 235 N.E.2d 819; People v. Henry, 47 Ill.3d 312, 265 N.E.2d 876; and People v. Brown, 117 Ill. App.2d 97, 253 N.E.2d 140, defendant argues he was denied a speedy trial in violation of the constitutional requirements even though he may not have been within the precise terms of the statutory implementation of such constitutional right. In this respect the aforecited authorities do announce and discuss the constitutional speedy trial provisions in relation to the statutory implementation and conclude the constitutional provision is not completely implemented by the statutory provisions and theorize that a person accused of a criminal offense may be deprived of his constitutional right to a prompt trial even though he may not come within the terms of the implementing statute. Conceding that the statute does constitute a legislative declaration implementing the constitutional provision, the aforementioned authorities observe that such statutory implementation does not exhaust or completely circumscribe the speedy trial provisions of the Illinois Constitution or the Federal Constitution.
In the Love and Henry cases, supra, as well as the recent case of Barker v. Wingo, (U.S.), 33 L.Ed.2d 101, the courts have indicated that failure to bring a defendant to trial for some lengthy unspecified period of time may constitute presumptive prejudice requiring discharge of the defendant. However no case has been called to our attention or has been cited in the principal authorities in which such rule has been applied. Consequently we are not prepared to say the period of delay between arrest and trial in the case at bar creates a presumption of prejudice. The extended period of purposeless delay would appear to approach the limit of delay beyond which prejudice would be presumed as a matter of law.
• 1-3 Even though a demand for trial by defendant out on bail may not be essential in determining whether defendant has been denied his right of a speedy trial defendant's conduct is relevant to the question of assertion or waiver of his constitutional right. (Barker v. Wingo, supra.) Prejudice either apparent or actual as distinguished from merely potential caused by unreasonable delay is probably the most important factor in determining whether the constitutional provision has been violated. In the case at bar it is our conclusion that the record has shown no prejudice and consequently we conclude defendant's constitutional rights have not been denied.
As observed in Barker v. Wingo, supra, there is both a societal right and duty to provide for prompt trials regardless of the wishes or conduct of the defendant lest the goals of the criminal procedure be thwarted. This admonition would seem of particular application to the case at bar where a sentence of from 1 to 3 years in the penitentiary is imposed nearly 4 years after the offense occurred. The State offers no reason or excuse for the delay except an illusion to defendant's motion for extension of time to plead filed on February 14, 1968, suggesting that because said motion was pending and had not been acted on at time of trial some 3 years later this constituted delay attributable to the defendant. Such claim is in our judgment without merit since the motion was never granted, the cause was never continued pursuant to the motion and after the defendant filed his amendment to his dismissal motion on February 28, 1968, such motion could have had no legal effect if indeed the filing itself had any legal effect. Even though defendant failed to object to the delay we strongly doubt that the purposeless delay furthered any appropriate goal of the criminal process and in our judgment such delay ought not to have occurred.
After considering defendant's arguments concerning insufficiency of the evidence to prove him guilty beyond a reasonable doubt and the alleged prejudicial trial errors it is our conclusion that no reversible error was committed.
With respect to defendant's contention that the evidence is insufficient to support the jury's verdict that he was guilty of reckless homicide beyond a reasonable ...