Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Winnebago
County; the Hon. William P. Nash, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 30, 1974.
Following a jury trial in the circuit court of Winnebago County, defendant, Franklin Hickman, Jr., was convicted of the attempted murder and attempted armed robbery of Peter Scalia. Defendant was sentenced to the penitentiary for concurrent terms of 10 to 20 years and 10 to 14 years, respectively. The appellate court affirmed his convictions and sentences imposed thereon (People v. Hickman, 3 Ill. App.3d 919) and we granted leave to appeal. Defendant argues that he was entitled to discharge because he was not tried within the time required by statute (Ill. Rev. Stat. 1969, ch. 38, par. 103-5(a)); that he was denied a fair trial when the trial court failed to hold a proper hearing as to the voluntariness of his confession, and that his sentences were excessive.
Peter Scalia was employed as a liquor store manager in South Beloit, Illinois. He testified that on September 16, 1969, at about 1:00 P.M., while dusting bottles of liquor, he turned and noticed two men standing at the cash register. One man, whom Scalia thought was the defendant, had a gun and said "this is a stick up." Scalia moved, a shot was fired, and the bullet struck him in the stomach. He then turned, picked up a folding chair and threw it in the direction of the attackers. Another shot was fired missing Scalia, who then obtained his weapon and pursued his assailants outside, where he fired several shots and then collapsed.
Initially, defendant argues that he was not afforded a speedy trial. The applicable statutory provision (120-day rule) provides that "Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *." (Ill. Rev. Stat. 1969, ch. 38, par. 103-5(a).) The record discloses that defendant was arrested on September 22, 1969, and remained incarcerated until his trial began on January 28, 1970. On October 30, 1969, an indictment was returned against him and his co-defendants, James Cole, Roger Hickman and Herbert Buford. Defendant, Cole and Roger Hickman, represented by the public defender, were arraigned on November 4, 1969, and pleaded not guilty. Buford's attorney did not appear and his arraignment was postponed. The State furnished to the public defender a witness list and copies of statements, purportedly made by each defendant. Thereafter, trial was set for November 24, 1969, but continued by the court to January 19, 1970, because it was informed that Scalia had not fully recovered from his wound. A supplemental record was filed in this court pertaining to the proceedings relative to co-defendant Cole between November 4 (the date of arraignment) and January 21. It reveals that on November 21, Cole pleaded guilty to attempted armed robbery and was granted leave to file a petition for release on probation. On the State's motion, the trial court continued generally the charge of attempted murder against Cole.
On January 19, defendant, Roger Hickman, and Cole appeared. Buford's attorney did not appear at this time. The public defender requested that Cole be allowed to withdraw his plea of guilty and enter a plea of not guilty. He further stated that "I would be ready for trial." The court allowed the change of plea and, without objection, set the date of trial for January 21. Although the record is not clear, it would appear that sometime thereafter a request by Buford's attorney for a further extension was granted and the trial was re-set for January 26. Defendant and his counsel were not present when this request was made.
On January 26 the public defender presented an oral motion for discharge of the defendant on the ground that he had not been brought to trial within the statutory period of 120 days. A written motion to this effect was denied on January 28. The public defender and Buford's attorney then moved for a severance as to each defendant. They argued that prejudice might occur if the contents of written statements allegedly obtained from several of the co-defendants were presented to a jury in a joint trial. These motions were allowed and the State proceeded to trial against Franklin Hickman.
The appellate court determined that on January 19, defendant had been incarcerated for 119 days and this conclusion is not now disputed. It held that under the peculiar factual situation defendant, through his attorney's actions, waived his right to discharge under the statute. 3 Ill. App.3d at 931.
To support his argument that he was not afforded a speedy trial defendant now asserts that on January 19 he, Cole and Roger Hickman stood ready for trial and did not request a continuance; that the State did not object to Cole's change of plea and was also ready for trial as evidenced by its admission to this effect made on January 28; and that the continuance entered on January 19 was on the court's own motion and is not chargeable to defendant. Conversely, the State argues that the withdrawal of the plea of guilty by the public defender on behalf Cole on the 119th day, and the silent acquiescence of both the public defender and defendant to a continuance to the 121st day (January 21, 1970) was sufficient to toll the statute.
In People v. Nowak, 45 Ill.2d 158, we said: "The decisions of this court announce the rule that where a defendant has sought and obtained a continuance within the period in question, or when he asks for and receives a change of venue, or by his own action he has otherwise caused delay, the right to be tried within the statutory period is temporarily suspended and the statute does not apply until a new statutory period has elapsed. [Citation.] We have also said that a defendant may waive his right to a speedy trial by failing to object to delays occasioned by another with whom he is jointly indicted and tried. [Citations.] * * * We find that by causing delays in the respects indicated and by failing to object to delays caused by his co-defendant, Nowak effectively waived his right to be tried within the statutory period and was not entitled to discharge under the statute." (45 Ill.2d 158, at 167-68.) Furthermore, as we noted in Nowak, there appeared to be no oppressive or arbitrary delay which contravened his right to a speedy trial. This observation is equally applicable in the present case.
In determining whether this statutory provision has been violated we look to the circumstances in each case. (People v. Nunnery, 54 Ill.2d 372.) We agree with the appellate court's conclusion as to the incongruity presented in this case. The failure of Buford's attorney to appear at the proper time on January 19 obviously necessitated a postponement in the proceedings, and the change of plea by Cole results in a similar conclusion. We are of the opinion that the totality of the circumstances surrounding the proceedings on January 19 produced delay.
The issue presented is whether this delay was attributable to the defendant. While it has been recognized that a continuance which is apparently entered on the trial court's own motion may not be chargeable to defendant (see People v. House, 10 Ill.2d 556; People v. Wyatt, 24 Ill.2d 151), we believe that it was incumbent upon defendant or his counsel to object to the continuance in this instance. To permit defendant's discharge upon the facts of the record presented might countenance tactical maneuvers originating at or near the expiration of the time limit provided by the statute. Such dilatory actions would permit an advantage to an attorney representing joint defendants or to joint defendants represented by separate counsel by allowing counsel to cause delay as to one defendant. The trial court would then be placed in a position of having to refuse counsel's requests or grant an otherwise undesired severance if the co-defendants or their attorney did not affirmatively acquiesce in such delay. This result is neither necessary nor beneficial to an orderly judicial process. (See United States v. Ewell, 383 U.S. 116, 120, 15 L.Ed.2d 627, 631, 86 S.Ct. 773.) Therefore, we do not believe that an undue burden would be placed on an incarcerated defendant who is represented by counsel and desires a commencement of trial within the statutory period, if such defendant were required either personally or through counsel, to object to delay occasioned by a co-defendant shortly before the expiration of the statutory period or to ask for a separate trial in order to effectuate his constitutional guarantee. If defendant or his counsel do not so act, as here, then the continuance entered pursuant thereto can be attributable to him. See People v. Meisenhelter, 381 Ill. 378, 386; see also Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182.
Defendant has cited People v. House, 10 Ill.2d 556, in support of his position that he be discharged. The House case is distinguishable for there the disputed continuance was entered by the trial court on its own motion and the defendant was not represented by counsel at that time. See also People v. Nunnery, 54 Ill.2d 372.
Defendant further maintains that he was denied a fair trial because of the procedure adopted by the court in determining the ...