APPEAL from the Circuit Court of Cook County; the Hon. EARL
STRAYHORN, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The defendant, Brenda Green, and Melvin Loveless were indicted for murder and conspiracy to murder her husband, Lawrence Green. Loveless entered a plea of guilty and the defendant was found guilty by a jury; she was sentenced to a term of 25 to 35 years.
The defendant and the deceased were married in March, 1972, and lived at 3653 South King Drive in Chicago. In the early morning of August 29, 1972, the deceased's body was found by the police lying face down in a street in Wilmette with a black plastic bag over his head. His death was due to a severe injury to the skull and brain which, in the opinion of the pathologist, was caused by a "broad, blunt, heavy object compatible with a two-by-four." On September 8, the defendant gave statements to the police and State's Attorney in which she said that she had talked to Melvin Loveless about killing her husband, with whom she had had difficulty, and that she let Loveless in her apartment on the night of August 28, knowing he was going to kill her husband. Later she assisted Loveless in removing her husband's body from her apartment and disposing of it in Wilmette.
The defendant first contends that her motion for discharge under the Four Term Act was improperly denied. (Ill. Rev. Stat. 1971, ch. 38, par. 103-5.) The defendant was arrested on September 8, 1972, and remained in custody until her trial began on April 26, 1973. She was arraigned on November 14, 1972, and the case was assigned to Judge Strayhorn. On the same day, with 52 days remaining in the term, the defendant filed a motion for discovery before Judge Strayhorn, who, in reliance on the appellate court opinion in People v. Nunnery, 4 Ill. App.3d 217, 280 N.E.2d 537, over objection of the defense attorney, continued the case on motion of the defendant to December 15, 1972, without subpoenas to set the case for trial.
On December 15, 1972, the following occurred before Judge Strayhorn:
"Mr. Lincoln [Public Defender]: With reference to Mrs. Green I was under the impression this was set for Monday, has this been motioned up for today?
The Court: No, it is regularly on this call for today for filing of discovery.
Mr. Lincoln: Well, as long as it is here I will file a motion to suppress which I was planning on filing Monday.
Mr. Lincoln: I would like to file the motion to suppress physical evidence and motion to quash arrest and suppress evidence.
The Court: State ordered to file its response to defendant Loveless' request for discovery within fifteen days from today. Mr. McNeil, you will have on behalf of Mr. Loveless fifteen days thereafter to file your response to the State's request for discovery. Motion of defendant Green to suppress physical evidence what physical evidence are you seeking to suppress, Mr. Lincoln?
Mr. Lincoln: I believe there were some papers in a wastebasket and there were some other items but I am not sure exactly what.
The Court: Before we hear this motion you will file an amended motion setting forth the specific items you seek to suppress and to quash the arrest from and we will hear your motion on January 19. It will be motion of the defendant.
Mr. Lincoln: We are ready for a hearing on our motion.
The Court: You can't be ready for a hearing, Mr. Lincoln. You have just told me you thought this matter was up Monday; it will be motion of the defendant Green for January 19.
Mr. Lincoln: I indicated I thought it was up Monday, yes, so far as the motion.
The Court: It's motion defendant, Mr. Lincoln, January 19.
Mr. Lincoln: Can I say what I have to for the record?
The Court: No, I don't want to hear anything else in that connection. You are not going to clutter up the record. You just stood up here and said you thought it was up Monday and now you file a motion and you say you are ready for a hearing on it. Motion of the defendant, January 19.
Mr. Lincoln: On this motion I have no other evidence that I need to gather other than the defendant.
The Court: Well, it's motion of the defendant Green, January 19.
Mr. Lincoln: We will object to it being motion of the defendant.
The Court: Your objection is overruled."
It is the position of the State that the discovery motion of November 14 and the motion to suppress of December 15 each tolled the statute. The State concedes if neither motion did toll the statute the defendant must be discharged.
The impact of discovery motions on the statutory period has been expressed in People v. Nunnery, 54 Ill.2d 372, 374, 297 N.E.2d 129, which reversed the appellate court opinion relied on by the trial judge in this case. In Nunnery, the defendant was arraigned 115 days after his arrest and filed a discovery motion. The State contested some aspects of the motion, and the court reserved its ruling on the request for information concerning whether, when, by whom, and under what circumstances the defendant had been identified. The State's Attorney requested time to learn by whom the defendant had been identified because he might have had an objection to disclosing that information to the defendant. At the same time the State's Attorney mistakenly informed the judge that the statutory period would not run for 6 weeks. The supreme court upheld the trial court's order discharging the defendant (54 Ill.2d 372, 376-377):
"The record contains no explanation of why defendant's arraignment and the appointment of counsel were delayed until he had been incarcerated for 115 days. Clearly he was entitled to discovery [citation], and if, as is now contended, the People were ready for trial within the 120-day period, the information which the court ordered the People to produce could have been given defendant promptly and the court advised immediately as to the People's position with respect to the paragraphs of the motion on which the ruling was reserved. Furthermore, it was the State's Attorney who erroneously advised the court that the statutory period would not run for 6 more weeks, and nothing in the record indicates that defense counsel, appointed that day, knew when the defendant was arrested and how long he had been in custody. Upon consideration of all of the circumstances we conclude that the delay was not occasioned by the defendant and the circuit court did not err in discharging him."
In People v. Scott, 13 Ill. App.3d 620, 301 N.E.2d 118, the appellate court noted that Nunnery was decided on the precise facts before it and was authority for the proposition that not every discovery motion causes a delay which can be attributed to the defendant. The court stated what we deem to be the sound rule governing the applicability of discovery motions to the statute and the rule's rationale (13 Ill. App.3d 620, 630):
"Motions for discovery may or may not require time to comply with them. A motion may be simple and easily answered or it may be detailed and difficult to answer. The information requested may be presently known or it may only be obtained after search and inquiry. The requested information may be reasonable and supplied without objection or it may call forth objections which must be heard and resolved. A discovery motion which the State can answer quickly would cause little or no delay; the State should not be permitted to use such a motion as an excuse to toll the statute implementing the constitutional right to a speedy trial. On the other hand, a discovery motion that calls for answers which are not quickly available or requests answers replete in detail would cause a legitimate delay; such a motion is properly attributable to a defendant and tolls the running of the statutory period. Whether a motion falls into the former or the latter category would depend on the facts of each case. This calls for the trial court's appraisal of the motion, its need, timeliness and complexity; it calls for the court's appraisal of the State's ability to answer the motion immediately or the merit of the State's reasons for not doing so. The interpretation of the motion and of the availability of the required information, the reasonable time needed to answer and whether proposed objections are genuine or dilatory, should rest in the judgment of the trial court and its decision as to the accountability for the ensuing delay, if there is one, should be sustained unless it is clearly shown that the court's discretion was abused."
All the continuances are either on motion of the State, order of court, by agreement or motion of the defendant. Only if the continuance is by agreement or on motion of the defendant may the delay be chargeable to the defendant. When the discovery motion is made and the judge orders compliance and continues the matter to give the State time to comply, he must make a judgment based on what is before him at that time as to the accountability for the delay.
1 In this case, the public defender filed a motion for discovery when the defendant first appeared before Judge Strayhorn. Although it is a form motion, it is very comprehensive. It sought a bill of particulars containing the exact time and date of the occurrence and the exact street address and physical description of the location of the occurrence; the names and addresses of any witnesses the State might or might not call and the production of any written or recorded statements by those witnesses or any memoranda reporting or summarizing oral statements of the witnesses; any written or recorded statements or the substance of any oral statements made by the accused or co-defendant and a list of witnesses to the making and acknowledgement of the statements, the time, place and date of the statements and any written or recorded memoranda containing the substance of any oral statements; any transcript of the grand jury minutes containing the testimony of the accused and testimony of those witnesses who might be called to testify before trial including any transcription made of a witness' testimony that might be favorable to the defense; a list of all physical property that the State intended to use at the time of trial including a list of all physical property in the possession of law enforcement officials, the date and time the property was acquired, the location from which the property was acquired, what person or persons first took the property into their possession, reports made by law enforcement authorities pertaining to the property including scientific reports; any reports of experts made in connection with the particular case including the results of physical or mental examinations and of scientific tests; any books, papers, documents, photographs or tangible objects which the prosecution intended to use in the hearing or which were obtained from or belonged to the accused or co-defendant; prior criminal records of the State's witnesses to be used for impeachment; whether the prosecution intended to use certified copies of convictions of the accused for purposes of impeachment and time and jurisdiction of such convictions; any evidence in the prosecution's possession as to whether it would rely on prior acts or convictions of a similar nature for proof of knowledge, intent or motive; the names and addresses of the witnesses the State intended to call for identification of the defendant including time, date and place of identification confrontation; if photographic identification was used, production of any photo used whether of the defendant or of other persons; all persons present at such viewing; any pictures taken of the line-up; the names of any individuals who confronted the accused and made no identification or identified him for other crimes; notification of any electronic surveillance (including wiretapping) of conversations to which the accused was a party or his premises, or that the prosecution intended to use in the prosecution of a conspiracy; any evidence that was acquired as a result of the execution of any legal process and, if so, a copy of the legal process for purposes of inspection; and the names and addresses of any witness or witnesses that might be or would be favorable to the defendant, who were to be clearly and separately identified on the list of witnesses as was any physical evidence or scientific evidence that might or would be favorable to the defense. The motion asked that the prosecution be ordered to compel any informant whose identity they intended to keep secret to be brought to the court at any time, date, or place out of the presence of the defendant and defense counsel to assert whether or not the informant in fact did exist and the informants who were to be produced at any hearing or trial to be named and disclosed on the list of witnesses; and for an order that the State make available relevant witnesses for the purpose of preserving testimony that might be made unavailable, to include production of certain books, papers, documents or tangible objects that might be under the control and possession of those witnesses.
It is apparent that compliance with such a motion might require considerable time, but it is also apparent that it does require considerable investigation to determine whether the things sought actually exist. Assisted by hindsight, we see that the State filed a list of witnesses on January 19, which included a doctor from Evanston Hospital, two members of the Wilmette Fire Department, two employees of the coroner's office, including a physician; two members of the Chicago Crime Detection Laboratory, a resident of Boston, Massachusetts, an assistant State's Attorney, a court reporter; members of the Wilmette and Chicago Police Departments; and relatives and neighbors of the deceased. We also see that the case involved photographs, bloodstained papers, a two-by-four and written statements; and to a large degree scientific evidence such as blood types, the plastic bags and the nature of the wounds. Some of the difficulty in preparation that confronted the State may be illustrated by the fact that it was required to prove the deceased's blood type from his army records; and we note, parenthetically, that on December 15, the State had not yet complied with the discovery order and that the defense made no point of it. We believe, therefore, that this was a relatively complex case and that compliance with the discovery motion filed by the defendant caused a delay which should be attributed to her. Although the trial judge based his decision on a case which was later reversed, subsequent events proved that he did not abuse his discretion and that regardless of his reason he should have continued the cause on motion of the defendant.
By these observations we do not mean to suggest that what transpires later should be the yardstick by which the judge's discretion is measured. The judge is not a seer who can look into the future and tell how long a discovery motion requires for compliance. The decision to make a continuance attributable to the State, defendant or court must be made at the time the motion is made and it must be based on what is then before the court. In many cases, as in this one, neither the judge nor the assistant State's Attorney has any knowledge of the facts of the case at the time the discovery motion is made. It is the duty of a reviewing court to place itself in the position of the trial judge at the time of the ruling to see if there is some valid reason for it (People v. Garrett, 115 Ill. App.2d 333, 341, 253 N.E.2d 39); and it would be unfair for a reviewing court, speaking from its "cool and distant station" and having the benefit of hindsight, to gainsay the trial court's decision because subsequent proof shows that the discovery motion was, in the opinion of the reviewing court, easily answered by the State.
2 We also believe that the defendant's motion for discharge was properly denied because the motion to suppress the evidence filed December 15 also tolled the statute. The case of People v. Schoeneck, 1 Ill. App.3d 395, 401, 274 N.E.2d 483, is clearly in point, as are the cases cited by the State, People v. Ross, 132 Ill. App.2d 1095, 271 N.E.2d 100, and People v. Jones, 130 Ill. App.2d 769, 266 N.E.2d 411. For these reasons we judge that the trial court properly denied the motion for discharge.
Over the defendant's objection, the court gave the following instruction:
"You have before you evidence that a defendant confessed that he committed the crime charged in the indictment. It is for you to determine whether the defendant confessed, and if so, what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all of the circumstances under which it was made."
The defendant contends that this instruction was prejudicial error since none of the statements admitted in evidence was a confession. In her handwritten statement to the Chicago police, the defendant said that she had talked to Loveless about having trouble with her husband. As time went on, she continued to have trouble "so Melvin [Loveless] told [her] that he was sick of Lawrence treating [her] this way, so he said that he would kill him." Monday night he came to her apartment, rang her front doorbell and came in and hit her husband with a stick six times. He wrapped her husband's body in a spread and took the body out the back door. Later, in a statement given to an assistant State's Attorney, she identified her handwritten statement and said that the facts as she wrote them were true and correct. Parts of the statement to the assistant State's Attorney are as follows:
"Q. Would you like to tell me in your own words what happened that night?
A. Yes. That Monday evening Melvin came by my house. My husband was on the couch asleep and he
Q. By Melvin, you mean Melvin Loveless?
A. Right. He came in and I informed him that Lawrence was sleeping on the couch. He took the board from the ...