APPEAL from the Circuit Court of Du Page County; the Hon.
EDWIN DOUGLAS, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Following a bench trial, the defendant was convicted of theft and sentenced to a term of 1 to 3 years in the penitentiary. On appeal, he contends that his constitutional and statutory right to a speedy trial was violated, and that therefore the conviction should be reversed. In the alternative, he asserts that the case should be reversed and remanded for a new trial on the ground that the trial court failed to conduct hearings (1) on the voluntariness of his admissions and (2) on the voluntary nature of his consent to the search of his apartment, and that this constituted error. We disagree and affirm.
The facts relevant to the narrow issues presented for review are somewhat complicated. The defendant, James V. Placek, and a co-defendant were arrested on November 26, 1970, for the theft of four television sets taken from the Willowbrook Holiday Inn Motel. Both were originally indicted for this offense in Indictment No. 70-3389G. It appears that in the pretrial stages under this indictment, the defendant was represented initially by Mr. Cogan, who attempted to negotiate a plea. A substitution of attorneys was allowed, whereupon the defendant was represented by Mr. Lucas. Mr. Lucas filed a motion to suppress certain evidence, and a hearing was held; the motion was denied, and the case was set for trial for November 8, 1971.
On the morning of November 8, 1971, another attorney, Marco, informed the court that Mr. Lucas, the attorney of record, was going to ask leave to withdraw and that the defendant again requested a substitution of attorneys. Mr. Marco requested that the court also grant a continuance to enable him to familiarize himself with the case. The trial judge refused to grant these motions, indicating that they were dilatory in nature and insisted that the case proceed to trial as scheduled. The court informed the defendant of his right to a jury trial, and the defendant executed a jury waiver. It should be noted that Mr. Marco did not enter an appearance as the attorney of record at this time. Mr. Lucas, the attorney of record, then presented a motion for a continuance, which was denied.
After a brief recess, the case was called for trial, at which time the assistant State's attorney moved to nol-pros the case because of a defect in the indictment regarding ownership of the television sets. At the same time, he informed the court and defense counsel that the State intended to reindict. After the court had granted the State's motion to nol-pros the case, then and only then did Mr. Lucas, the attorney of record for the defendant, state
"We are ready for trial on this matter, and we have been forced to trial today and we would ask for further than an order of a nolle pros."
The judge responded that he had "no alternative but to nol-pros on the State's motion."
Subsequently, on March 2, 1972, the defendant, James V. Placek, and his co-defendant were reindicted, and an arrest warrant was issued. However, the defendant was not arrested pursuant to the warrant until September, 1972. His counsel, Mr. Mannina, filed a motion for a discharge or dismissal on the grounds that the defendant had not been brought to trial within 160 days from November 8, 1971, the date on which the defendant contends he had demanded trial pursuant to section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 103-5(b)). On March 14, 1973, a hearing on this motion to dismiss was held. The defendant's position at this hearing was that once the defendant demanded trial, not only must the State reindict within the statutory period, but also the State must bring the case to trial within the statutory period. It is undisputed that the State must, and here did, reindict within the statutory period.
After an analysis of the proposition urged by the defendant, the trial court concluded that the crucial element was whether there was a demand for trial by the defendant. Based on the report of the proceedings of November 8, 1971, the court concluded that there had been, in fact, no valid demand for trial made by the defendant at that time. Consequently, the court denied the defendant's motion to dismiss.
Defendant then moved to suppress certain physical evidence, alleging that the defendant's consent to the search of his automobile was involuntary. The State countered with a motion to strike defendant's motion to suppress on the ground that there had been a hearing on a motion to suppress the same evidence under the same facts under Indictment No. 70-3389G, which had been subsequently nol-prossed. That hearing had resulted in a denial of defendant's motion. The State's position was that in the absence of new or additional evidence, which was not presented at the previous hearing on the motion to suppress, the matter was res judicata. The trial court denied the State's motion to strike and ordered a hearing on the defendant's motion to suppress evidence. At this juncture, the court transferred the case to Judge Woodward, who heard and denied the defendant's motion to suppress.
The case was to proceed to trial without a jury, but Judge Woodward suggested a substitution of judges since the indicted co-defendant of Placek had entered a plea of guilty before him earlier that day. The case was then transferred to Judge Douglas. Defense counsel then renewed his motion to suppress and asked for a rehearing on the motion before Judge Douglas. This motion for a rehearing on the motion to suppress was denied by the trial judge, and the trial commenced.
The State then first called E.L. McQuown, the arresting officer, who testified, inter alia, that upon arrest he advised the defendant of his rights in accordance with the "Miranda warnings," and that the defendant acknowledged his understanding of those rights. During the course of his testimony, Officer McQuown stated that the defendant had stated in his presence and in the presence of Officer Keyes and Mr. Rimes, the innkeeper, that he and the co-defendant had registered at the motel under fictitious names and had taken two other television sets from the motel earlier that evening. At this point, defense counsel objected to the admissibility of defendant's statements on the grounds that such an admission or confession had been made involuntarily and had been induced by promises of leniency by the police officers and the representative of the motel. Defense counsel then moved for a hearing to determine the voluntariness of the confession. No motion of this nature had been made prior to trial, as required under section 114-11(a), (g) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114-11(a), (g)). However, defense counsel asserted that prior to this testimony, he had not been aware of any statements made by his client, and therefore, this was his first opportunity to make a motion to suppress the confession. The State responded that it had answered the defendant's motion for discovery, wherein these statements of the defendant had been set forth, and that, having such information, the defense had sufficient opportunity to make this motion prior to trial. The court overruled the objection of defense counsel, did not conduct a hearing to determine the voluntariness of the confession, and admitted the testimony of Officer McQuown into evidence. In order to avoid interrupting the further testimony of Officer McQuown, which disclosed additional incriminating statements of the defendant, defense counsel made a continuing objection to the admissibility of these statements on the basis of his motion to suppress the confession.
At a later point in Officer McQuown's testimony, the defendant's handwritten consent granting permission to search his apartment, was read into the record as follows:
"I give my permission to go into my apartment at 3840 Gaslight Square, Alsip, to recover two RCA televisions. I accompanied two Willowbrook police officers to the above address ...