APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1975.
The defendant was convicted of unlawfully delivering less than 30 grams of a substance containing heroin in violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1401(b)), and sentenced to 1-3 years in the penitentiary. He appeals, contending that the indictment should have been dismissed because a 71-day delay between the date of the incident and the date the complaint charging the offense was filed deprived him of due process of law; and that the closing argument of the prosecutor deprived him of a fair trial.
On January 22, 1973, a criminal complaint was filed charging the offense for which defendant was ultimately convicted. The unlawful act was alleged to have occurred on November 12, 1972. Thereafter, defendant was indicted on April 4, 1973.
On June 22, 1973, defendant's counsel filed a motion for dismissal which urged that the delay in prosecution enabled one of the State's informants, Walter Richardson, to be unavailable to the defendant. At a hearing held on the motion defense counsel stated that he wished to offer testimony in support of the motion. Specifically, he stated to the court that he wished to at least explore the relationship between Michael Smith, the deputy who made the purchase, and Walter Richardson "to see if there is an advantage that was gained over Mr. Holland." The judge hearing the motion to dismiss denied it without conducting the requested evidentiary hearing.
On July 10, 1973, defendant drafted and filed a pro se petition for writ of habeas corpus, in which he included the same issue raised in the motion to dismiss. At the hearing on the habeas corpus petition the judge was informed by the State's attorney that when the offense occurred Deputy Smith was acting in an undercover capacity in a continuing investigation of the heroin traffic in Rockford and that an immediate arrest of the defendant would have effectively precluded any further investigation. The court ruled that under the circumstances, defendant's rights had not been violated and denied the petition.
The motion to dismiss included the following allegations.
"4. That the State's delay in prosecuting this matter enabled a certain Walter Richardson to flee the State and Walter Richardson is presently unavailable to the defendant.
5. The disappearance of Walter Richardson represents a substantial prejudice to the case of the defendant, and such prejudice could have been avoided had the State pursued this matter with due diligence."
The same allegations were repeated in the pro se habeas corpus petition.
• 1 Possible prejudice as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge is ordinarily addressed by the applicable statute of limitations and does not by itself pose an issue of constitutional due process. (United States v. Marion (1971), 404 U.S. 307, 322-23. See also People v. Allen (1967), 38 Ill.2d 26, 28.) To constitute a violation of due process it must be shown that the delay between crime and arrest or charge caused substantial prejudice to the defendant's right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Marion, 404 U.S. 307, 323-324.
In narcotics cases delay commonly results from continued investigation of other suppliers and considering this factor, if the delay is reasonable, due process is not offended. People v. Allen (1967), 38 Ill.2d 26, 28 (39-44 days); United States v. Williams (1973), 352 F. Supp. 1387, 1389 (delay from January 28, 1971, to May 2, 1972, for undercover activities); United States v. White (7th Cir. 1972), 470 F.2d 170, 175 (15 months delay); United States v. Napue (7th Cir. 1968), 401 F.2d 107, 115, cert. denied, 393 U.S. 1024 (11 weeks); Torriente v. United States (S.D.N.Y. 1974), 379 F. Supp. 70 (7 months); O'Reilly v. United States (8th Cir. 1973), 486 F.2d 208, 210 (3 months delay).
The State has justified the delay involved here on the basis of an ongoing investigation, and the defendant has not pleaded or shown that the purpose of the delay was unreasonable. Nor has the defendant pleaded, nor is it apparent from the record, that the delay "caused substantial prejudice to * * * rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused". United States v. Marion, 404 U.S. 307, 324.
Defendant has cited the case of United States v. White (7th Cir. 1972), 470 F.2d 170, in support of the argument that an evidentiary hearing should have been allowed so as to have permitted a demonstration of actual prejudice. White, however, does not support defendant's argument but in fact notes that where the "trial court has held no hearing on the prejudice resulting to the defendant, appellate courts have read the ...