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People v. Mack

JANUARY 23, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BERNARD MACK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding. MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant, Bernard Mack, was found guilty of unlawful use of weapons and possession of a controlled substance. He was sentenced to concurrent terms of from four to ten years for the weapons charge, and from four to eight years for the possession charge.

The issues presented on appeal are (1) whether the court erred in denying the defendant's motion for a fourth term discharge; (2) whether the trial judge's ruling on the motion to suppress evidence was based upon the evidence heard; (3) whether the defendant was denied a fair trial by the conduct of the trial judge and the prosecutor; and (4) whether the defendant's sentences were excessive.

The defendant, Bernard Mack, was arrested on November 9, 1971. On January 20, 1972, he was indicted for possession of a controlled substance (heroin) and unlawful use of weapons. On March 13, 1972, the defendant moved the court for a fourth term discharge, which was denied. Thereafter, on the same date, the defendant filed a motion to suppress evidence. On March 14, 1972, a hearing was held on the motion to suppress. At the hearing, the police testified to approaching 675 North Clark Street, Chicago, Illinois, about 6:00 P.M. on November 9, 1971, during a routine premises check. Police officer James Leydon saw the defendant and another male standing in the doorway of 675 North Clark. Upon seeing the police, the defendant dropped or threw a manila colored small envelope to the ground and then turned around and walked into the store. The envelope was obtained by the police, opened, and found to contain twenty-three tin foil wrapped packets, one of which was opened and found to hold a white powder, which the officer believed to be heroin. The police then went inside the premises, placed the defendant under arrest, searched him and found a .22-caliber revolver on his person. The defendant testified at the hearing that he had been inside the premises and the police found nothing on his person during their search. At the close of the hearing, the trial judge denied the defendant's motion to suppress evidence.

At the trial on March 14, 1972, the testimony was substantially the same as at the suppression hearing. A jury found the defendant guilty of unlawful use of weapons and possession of a controlled substance.

The defendant first contends the court erred in denying his motion for a fourth term discharge. The defendant bases his contention on Ill. Rev. Stat. 1973, ch. 38, § 103-5(a) and (d), which provides, in pertinent part, as follows:

"(a) 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 * * *.

(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance."

The defendant argues that the only motion made by him before the fourth term ran was a motion for discovery, and such motion did not cause or contribute to any delay in the instant proceedings.

• 1, 2 We believe the court properly denied the defendant's motion for a fourth term discharge. The record indicates the defendant was arrested on November 9, 1971. On November 30, 1971, a preliminary hearing was held. After a finding of "probable cause," the court inquired if the defendant and his counsel wished to plea bargain in the lower court to have the case sent to the Grand Jury. Defendant's counsel replied, "We'll hear the offer, we'll take a week and hear the offer, please." The trial judge then explained to the defendant that in his opinion that was a "motion-defendant" continuance, and the case was continued until December 9, 1971. Neither party disputed the court's ruling. In People v. Rice (1969), 109 Ill. App.2d 212, the appellate court held:

"The criterion or test established by the Supreme Court [as to delay occasioned by the defendant] is whether the act of the defendant in fact contributed to cause the delay, or created the necessity for the postponement of the trial."

In the instant case, the defendant requested time to consider an offer. The defendant thereby caused the delay in the proceedings and cannot now argue he was improperly denied a Fourth Term discharge.

The defendant's second contention is that the trial judge based his denial of defendant's motion to suppress evidence on matters not in the record. At the close of the testimony on the motion to suppress, the defendant's counsel argued the motion should be granted because it was inherently incredible that the defendant would throw down a package of heroin in front of two uniformed police officers. The trial judge then commented:

"I disagree with you completely. If it were any other street, I would agree with you; but this one street I am familiar with. I worked many days down on that street in Traffic Court, * * * and I have seen this with my own eyes * * *. And this does not really seem that far out as far as I am concerned."

The defendant argues that the trial judge based his denial of the motion to suppress evidence on his own private knowledge and observations. The defendant relies on the decision in People v. Wallenberg (1962), 24 ...


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