APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
After a jury trial defendant was convicted of armed robbery and was sentenced to a term of seven to twelve years in the penitentiary. On appeal he contends:
1) He was deprived of due process of law by being required to choose between the right to the effective assistance of counsel and the right to a trial within 120 days;
2) The denial of his motion for a continuance in order to obtain different counsel was an abuse of discretion and was a denial of his right to have the assistance of counsel of his own choice;
3) It was error to deny his motion to suppress lineup identification evidence; and
4) The sentence imposed was excessive.
Shortly past midnight on the morning of September 21, 1970, three men, subsequently identified as Isaac Snulligan, Timothy Williams and defendant, entered the Sparta Grill located at 331 1/2 N. Central Avenue, Chicago, Illinois. Timothy Williams stood near the door. Snulligan and defendant walked to a position near the cash register. Defendant requested change for a dollar. The grillman, Nick Markos, complied with the request. Defendant then requested change for a quarter and was again accommodated. A customer entered and ordered soup. Mr. Markos went from the cash register to the end of the restaurant to procure the order. This action required him to turn his back to the patrons. He then heard a command, "Don't move, I have a gun." He raised his hands, turned around and observed Snulligan pointing a gun at him. Defendant opened the cash register and removed approximately $200. The three men fled from the grill. They had been in the restaurant for a period of five to seven minutes. The lighting was "very bright."
Joseph Muriullo observed Snulligan and defendant exit the grill and run on a northbound angle across Central Avenue. He observed defendant's face for "a matter of seconds" when defendant was ten to fifteen feet from him. He also observed that defendant was wearing red or burgundy slacks and a yellow shirt. The lighting was described as "bright."
Officer James Nowdonski of the Chicago Police Department stopped two men running in the vicinity of Fulton and Central. They identified themselves as Timothy Williams and Isaac Snulligan and were thereafter released. Officer Nowdonski returned to his vehicle and received a radio report that the Sparta Grill had just been robbed by three men. He observed Snulligan enter an automobile parked about three blocks from the restaurant. He approached the vehicle and observed Snulligan in the rear seat. Defendant and a female, Margaret Leonard, were in the front seat. Timothy Williams was walking westbound on Fulton. When defendant exited the automobile he was "breathing heavy." The group was arrested and $192 was recovered from the rear seat of the automobile.
A lineup consisting of Timothy Williams, Snulligan, defendant and two other men was conducted shortly after 1:00 A.M. on September 21, 1970. Nick Markos identified Timothy Williams, Snulligan and defendant as the men who had robbed him. Joseph Muriullo identified Snulligan and defendant as the two men he had observed running from the grill.
On the morning of January 18, 1971 (the 119th day during which defendant had been in custody), defendant and Timothy Williams were arraigned and the Public Defender, without objection from either accused, was appointed to represent them. When the trial began that afternoon, the Public Defender told the court that he had informed defendant that he was unprepared to go to trial because he had not had time to investigate the case, but he also stated that defendant, however, said he was ready for trial. The court inquired as to defendant's desire and defendant replied, "We demand trial now." The Public Defender then presented pretrial motions to the court and jury selection commenced. After a panel of jurors had been interviewed the case was recessed to the next day.
On January 19, 1971, the process of jury selection was continued. After the prospective jurors had been instructed as to voir dire procedures, they were excused until January 20, 1971. Defendant then indicated to the court that he desired to select his own jury and that he wanted an attorney other than the Public Defender. The court suggested that defendant give more consideration to his request for a different attorney and recessed the matter until January 20, 1971.
On January 20, 1971, the court explained to defendant that the Public Defender desired additional time to prepare the case, but that defendant could decide to go to trial immediately. The potential consequences of defendant's decision were completely and exhaustively explained to him. Defendant stated that he understood the court's admonitions as to the possible consequences but that he still wanted to proceed to trial. At this point the Public Defender stated that he nonetheless was requesting a continuance. Defendant again demanded trial. The process of jury selection was thereafter resumed without any ruling on the Public Defender's motion for a continuance.
On January 21, 1971, defendant requested a continuance so that he could seek other counsel. The State opposed the request. The court inquired of co-defendant Timothy Williams whether or not he too desired a continuance. Timothy Williams stated that he preferred to go to trial. Defendant inquired as to the court's decision regarding his request for a continuance and was told, "Sit down. We are going to trial." Timothy Williams pleaded guilty and was sentenced. Thereafter the Public Defender reported that he thought he had located a necessary witness for the alibi defense, Margaret Leonard, and he was withdrawing motion for a continuance, since he was adequately prepared to argue the pretrial motions and would be adequately prepared for the evidentiary stage of the trial when that stage would be reached on the 25th of January. The court indicated that it would continue the matter until January 25, 1971, if the Public Defender needed the time. After a hearing on pretrial motions the case was recessed until January 25, 1971, on which date the taking of evidence commenced.
Defendant initially contends that he was denied due process of law by being required to choose between the right to the effective assistance of counsel and the right to a trial within 120 days. Defendant's argument proceeds as follows: He asserts that the Public Defender was not appointed to represent him until he was arraigned and the State did, therefore, delay the appointment of counsel by delaying the arraignment, over which it had complete control, without any explanation whatever. When the arraignment, and the appointment of counsel, was delayed until the 119th day of the 120 day statutory period in which the State must try a defendant, appointed counsel could not be prepared to effectively assist his client at the trial which the State caused to begin that same afternoon, since there was no time for preparation. If defendant desired the effective assistance of counsel, he would have been forced to request a continuance so that appointed counsel could investigate the case, but such request would have extended the period in which the State could bring him to trial. Conversely, by electing to exercise his right to a trial within ...