APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Robert Ford was indicted for armed robbery (Ill. Rev. Stat. 1973, ch. 38, § 18-2) and unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, § 24-1(a)(2)). After a jury trial, he was found guilty of both crimes and sentenced to terms of 7 to 14 years for armed robbery and 1 to 3 years for unlawful use of weapons, with the sentences running concurrently. Defendant appeals and raises the following issues for review: (1) whether the trial court erred by failing to grant defendant's motion for discharge, when the State failed to bring him to trial within 120 days; (2) whether the State proved the defendant's guilt beyond a reasonable doubt; and (3) whether the closing rebuttal argument of the prosecutor was inflammatory and prejudicial.
The defendant was arrested on February 13, 1973, indicted on May 1, 1973, and arraigned on May 8, 1973. He entered a plea of not guilty to the charge and the public defender was appointed to represent him. On May 9, 1973, the defendant answered ready for trial, but his attorney, who had been appointed the day before, informed the court that he was not ready for trial so he filed a motion for discovery and made a motion for a continuance. The court continued the case by agreement and noted in the record that defendant answered ready for trial while his attorney answered not ready. On August 6, 1973, the defendant filed a motion for discharge because of the State's failure to bring him to trial within 120 days.
The trial commenced September 25, 1973, and the complainant, Haywood Tolbert, was called to testify. Mr. Tolbert testified that he left work and arrived home at 4635 South Michigan, at 4:10 or 4:15 p.m. He entered the lobby with a key in his left hand when a man placed a knife to his neck and said, "Keep quiet old man. Won't nothing happen to you." The complainant then turned around and shot the defendant in the leg with a gun in his right pants pocket. After shooting Ford, Tolbert testified that the defendant told an accomplice, "The old [expletive deleted] has shot me." The accomplice struck the complainant on the right side of his face, knocked him to his knee, tore his pocket, and wrestled the gun from him, along with his wallet and some change. When the men ran out of the building, the witness went to Miss Simpkins' apartment which is located on the first floor and called police. The police arrived and complainant gave them a discription of the confederates and went upstairs to change clothes. Then, he was taken to the hospital, treated, and released. Upon leaving the hospital, he went to the police station and viewed some suspects but was unable to make an identification. However, Tolbert testified that the accused, one of the men in the lineup stated, "That's the old man that shot me."
Officer Warnke, the next witness, testified that he went to 4635 South Michigan to answer an injured person call. When he entered the building, he saw a "red substance" in the hallway as he proceeded to Tolbert's apartment. The officer entered the apartment and noticed that the complainant's right eye was swollen and had blood on it. After conversing with the complainant, Officer Warnke returned to the lobby of the apartment building. He discovered that the red substance led out the door so he returned to Tolbert's apartment to get his partner, called for an assist car, and followed the trail on foot. While following the red substance, the officer found the complainant's wallet in an alley. The trail ended at 4534 South Indiana in a third-floor apartment. Here, the officers found the defendant under a bed with a gunshot wound in his right leg and a small knife was lying on top of the bed. The defendant was apprised of his rights, arrested, and taken to the hospital.
Investigator Green, the third witness, testified that Mr. Tolbert was brought into his office where he and other officers talked with the robbery victim. Then the officers contacted Joe Fagan, as assistant State's attorney, who interviewed Tolbert. A lineup was held and, although Tolbert was unable to identify the perpetrator of the crime, the witness testified that Ford identified Tolbert as the man who shot him. Following the identification, the witness stated the defendant made a statement that was reduced to writing.
Joseph Fagan corroborated Investigator Green's lineup testimony and stated that he interviewed Ford. In the oral statement the defendant said that he had been shot on Michigan or Indiana, but did not know why he was shot; that he was visiting someone and was not certain but thought Tolbert was the man who shot him. Although defendant was questioned by the State's attorney and his answers reduced to writing, he refused to sign the statement because he did not have his glasses.
Robert Ford, the sole defense witness, began his testimony by stating that he had been convicted of four prior offenses. Ford testified that he met Tolbert between 46th and 47th Street on Michigan. Ford testified that he was shot as he walked around Tolbert on Michigan, and that he went to a Mrs. Clay's apartment at 4634 South Indiana on the second or third floor. While Mrs. Clay was out to get a cab, the witness testified that the police came in and arrested him. Ford stated that he was taken to the hospital for treatment and then to the police station. A lineup was held and Ford testified that he identified Tolbert as the man who shot him.
Miss Pricilla Simpkins, a first-floor resident in Tolbert's building, was called as a rebuttal witness. She testified that Tolbert rang her bell on February 13, 1973, at about 4:15 p.m. She stated that his face was swollen and his right pants pocket was torn.
• 1 The defendant argues that the trial court erred by failing to grant his motion for discharge because the State failed to commence prosecution within 120 days as required by the speedy trial provision in the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1973, ch. 38, § 103-5.) Defendant submits that he was entitled to be discharged on August 6, 1973, unless the continuance granted at the May 9, 1973, proceedings was a delay attributed to him. The record indicates that the court continued the case by agreement so the defendant's attorney could prepare for trial. However, the court noted in the record that the defendant answered ready.
In People v. Carr (1972), 9 Ill. App.3d 382, 383-84, 292 N.E.2d 492, the court said:
"* * * [C]counsel for the defense stated that he needed more time for preparation, and desired a continuance of the case, in which the State concurred. The defendant, notwithstanding his counsel's wish, wanted a trial at once. Nevertheless, the Assistant Public Defender representing defendant advised him in the presence of the court that he needed more time, and the continuance was then granted on that request. While the defendant continued to strenuously object, he did not discharge his attorney, and that counsel continued to represent defendant throughout the trial, and indeed in this court.
If the court had acceded to defendant's demands, and had defendant been found guilty, the question would surely have arisen as to whether defendant had been denied the effective assistance of counsel who had stated that he was not prepared to defend. The four-term act was not violated and the court took proper action in continuing the case."
The fact situation in the instant case is exactly like that in Carr. The defendant herein demanded trial, while his attorney requested a continuance. The trial judge, who was interested in the defendant's due process rights, decided to grant defense counsel's request for a continuance to insure that the accused had a fair trial. In light of the trial judge's dilemma, we hold that the continuance "by agreement" was one occasioned by defendant's attorney and is, therefore, attributed to him. Where appointed counsel requests a continuance on the ground that he requires more time for preparation, it is not an abuse of discretion for the court to grant the request notwithstanding defendant's repeated strenuous ...