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People v. Miller

JULY 26, 1974.

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

v.

JOHNNIE MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES H. BAILEY, Judge, presiding.

MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Johnnie Miller, Eddie Ligon and Edward Dell Hooks were charged in a multiple-count indictment with the murder of Gilbert Burns and the aggravated battery of Robert Burns, in violation of sections 9-1 and 12-4 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 9-1, 12-4). The jury found all three men guilty of aggravated battery, and found Miller and Ligon guilty of murder; the murder charge as to Edward Hooks was dismissed for violation of the 120-day statute. The trial court sentenced Johnnie Miller to concurrent terms of 30 years to 60 years on the murder conviction and 7 to 10 years on the aggravated-battery conviction.

All three defendants prosecuted an appeal under a single general number. In People v. Ligon, 15 Ill. App.3d 746, 305 N.E.2d 212, this court affirmed the convictions of Ligon and Hooks and modified the sentences imposed on the aggravated-battery convictions to conform to the Unified Code of Corrections.

In his appeal, defendant Miller contends that he was denied the right to a speedy trial; that he was denied the right to a fair trial by reason of the introduction of incompetent and prejudicial evidence and the improper comment of the prosecutor; that the trial court improperly refused to instruct the jury on the elements of self-defense and manslaughter; and that the sentence imposed upon the murder conviction was excessive. The evidence adduced at trial is set forth at length in People v. Ligon and need not be repeated here.

OPINION

Defendant Miller contends that he was denied the right to a speedy trial because more than 120 days elapsed between the date of his incarceration and the date of his motion for discharge, without any delay having been caused by him in the proceedings, and that consequently the trial court erred in denying his motion for discharge filed pursuant to section 103-5 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 103-5). Defendant alleges that he was arrested and charged with the instant offenses on August 13, 1971, from which date he was held without bond; that at a hearing held on August 16, 1971, the matter was transferred to another branch of the Cook County felony court because the matter initially was improperly assigned to a branch that did not hear the type of felony here involved; that at the August 16 hearing his mother requested time to secure him an attorney; that the matter was continued to September 2, 1971; and that the continuance from August 16 to September 2 was not due to his mother's request for time to secure counsel but rather was due to the State's improper assignment of the case to the wrong court, necessitating reassignment to the proper court.

We hold this contention is without merit. The following colloquy occurred at the hearing on August 16, 1971, resulting in the continuance to September 2, 1971:

"THE CLERK: Willie Caldwell, Johnny Miller. James Griffen, complainant.

COURT SERGEANT: Two defendants.

THE COURT: Yes, Willie Caldwell and Johnny Miller. Who is Willie Caldwell?

THE DEFENDANT CALDWELL: I am.

THE COURT: Johnny Miller?

THE DEFENDANT MILLER: Yes.

THE COURT: Do you have a lawyer, fellows?

A BYSTANDER: No. I would ...


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