Appeal from the Circuit Court of Cook County; the Hon. Saul A.
Epton, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant was charged in indictment No. 70-1469 with burglary to commit theft in the apartment of Katie Davis, and in indictment No. 70-1483 with burglary to commit theft in the apartment of Inez Broadway. Davis and Broadway resided in an apartment building in Chicago. Defendant was tried and convicted by a jury in the circuit court of Cook County on indictment No. 70-1469 and was sentenced to serve from 2 to 4 years in the penitentiary. The other indictment was later stricken on motion of the State. The defendant appealed directly to this court, and here alleges denial of his right to a "speedy trial," and that he was not proved guilty beyond a reasonable doubt.
We will first consider the threshold question the allegation of denial of the defendant's right to trial within the 120-day statutory period. The petition recited that discharge was sought on the basis of section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, ch. 38, par. 103-5), which provides in pertinent part:
"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 * * *."
The 120-day provision has been before this court many times. The case of People v. Fosdick (1967), 36 Ill.2d 524, contains the rationale of our approach to the problem. On pages 528 and 529, the court stated: "In determining this question, the criterion in each case is whether the defendant's acts in fact caused or contributed to the delay. In the varied fact situations that involve the 120-day rule, we have carefully examined the facts to prevent a `mockery of justice' either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him."
The record indicates that the defendant was arrested February 21, 1970, indicted in May, 1970, for the offense of burglary committed February 18, 1970, and arraigned before Judge Power on June 8, 1970. He was not represented by counsel, and Judge Power then appointed the public defender to represent him. He then entered a not-guilty plea to each indictment, and the case was assigned to Judge Epton.
On Monday, June 8, 1970, Gen. No. 70-1469 came on for hearing before Judge Epton, and on motion of the State's Attorney, was continued to June 15, 1970, with subpoenas. On Wednesday, June 10, 1970, the public defender filed his appearance as counsel for the defendant in Gen. Nos. 70-1469 and 70-1483. The record does not indicate when the defendant first had an opportunity to talk to his newly appointed counsel.
On Monday, June 15, 1970, a short hearing was had in Gen. No. 70-1469, at which time the defendant filed discovery motions in both causes and the People presented the defendant with a list of witnesses, an answer to a bill of particulars, and a request for notice of alibi defense. On June 15, 1970, the court ordered the cause continued to June 22, 1970, without subpoenas.
The People, the defendant, and the court agree that the defendant had answered ready for trial prior to June 15, 1970, and the People make no claim of any instance of delay attributable to him, which would break the 120-day period which began after the defendant had occasioned a delay until April 10, 1970, except that on June 15, 1970. It is apparent that if the delay on June 15, 1970, was not occasioned by the defendant, then he was brought to trial after the 120-day period had run. Under these circumstances, the question before us is whether the defendant waived his rights under the statute by failure on June 15, 1970, to object to the court's ruling and notation that "on motion of counsel for defendant, it is ordered that this cause be continued to June 22, 1970, without subpoenas."
On June 15, 1970, defense counsel asked for one week to file an answer to the notice-of-alibi request. Absent the State's notice-of-alibi request, the defendant would not have requested 7 days' time for answer to it; thus, the source of the delay appears to rest rather heavily upon the State. The court then, after colloquy with counsel, continued the case until June 22, 1970, and charged the continuance as being on the motion of counsel for the defendant. On June 22, 1970, the court ordered a continuance until July 2, 1970, with subpoenas as to cause No. 70-1483 only and set cause No. 70-1483 for trial on July 3, 1970.
At the June 22 hearing, the defendant filed a motion to quash arrest and to suppress evidence, in both causes. On September 22, 1970, the State elected to proceed with cause No. 70-1469, after having earlier indicated that a different election would be made. However, the record is unclear as to the outcome of the motion to suppress at that time, but at trial on September 23 and 24, 1970, the judge indicated that it had been denied at the earlier hearing. On September 24, 1970, the defendant moved for discharge under the 120-day statute, and filed new motions to quash, and to suppress. They were argued and denied that day outside of the presence of the jury, and trial began that afternoon. The jury returned a verdict of guilty as to Gen. No. 70-1469 on September 25, 1970.
Section 114-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 114-14) provides:
"Upon the request of the prosecuting attorney, filed and served upon a defendant not less than 10 days before the trial of such cause, whenever a defendant charged with an offense prohibited by Articles 8 through 33, inclusive, of the `Criminal Code of 1961' proposes to offer in his defense, testimony to establish an alibi, such defendant shall, not less than 5 days before the trial of such cause, file and serve upon the prosecuting attorney a notice in writing of his intention to assert such alibi, which notice shall include specific information as to the place where the accused maintains he was at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call to establish such alibi defense. The defendant shall not be permitted to introduce evidence inconsistent with such notice unless the defendant establishes to the satisfaction of the court that witnesses to be called and not named in the notice were not known at the time such notice was filed or the court for other good cause permits the notice to be amended. In the event of the failure of a defendant to file written notice as required in this Section, the court may exclude evidence offered by the defendant for the purpose of proving an alibi, if it appears to the court that such evidence takes the State by surprise."
The State claims the right to be informed of any intended alibi defense. In this respect, we must look to the terms of the above statute. According to the statute the prosecuting attorney must file and serve the request upon the defendant no less than 10 days before trial of the cause. While this was not argued by either party, the State cannot be considered as ready for trial on June 15, 1970, when, on that date, it filed a motion which the defendant had 5 days to answer according to the specific statutory language. This, for practical purposes, amounts to a request for a continuance by the State.
After the jury had been picked, but before anything else had occurred, the defendant moved for discharge in Gen. No. 70-1469 for failure to bring him to trial within 120 days of the last delay attributable to him. The following colloquy was then had between the judge and the prosecuting attorney:
"The Court: Okay, motion defendant and this is March 6th. Okay, so let's say the term ...