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People v. Johnson

OPINION FILED FEBRUARY 27, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CLINTON EARL JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT L. GAGEN, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant was charged by indictment with the offense of armed robbery. In a jury trial he was found guilty and sentenced to 6-18 years in the penitentiary, from which judgment he appeals.

The armed robbery for which defendant was sentenced occurred in The Place, a bar in East St. Louis. There were two eyewitnesses, Irene Merritts, barmaid, and Clara Lewis, a customer.

Irene Merritts stated in substance that a man displaying a small, black automatic weapon forced her to lie on the floor while he took all the money from the cash register. There was ample light over the cash register, but the general lighting was dim — though in her words, "not real dark." She was certain that the defendant was the one who committed the robbery since, in her words, she had "a good look" at him and he had been in the bar between 30 and 45 minutes prior to the incident. She stated that she had been attracted to him because he looked like her ex-husband. Thus, she had watched him for over the course of about one-half hour. During most of this time he was 25 to 30 feet from her, but when the robbery was committed he was standing next to her. She testified that the gun which was exhibited by the People looked like the one used against her during the robbery. The witness also made a positive identification of the defendant in the lineup and identified him in the courtroom.

Clara Lewis, a customer in the tavern, testified that she had seen the defendant pacing the floor for approximately one-half hour. When defendant told everyone to drop to the floor she was about ten feet from him. Prior to the robbery the witness had a further occasion to look at the defendant when defendant told a drunken customer to stop swearing and to show some respect for the witness. The witness had a clear view of the defendant's face at this time. She testified that the gun exhibited by the People looked like the one used in the robbery. This witness also identified the defendant in the lineup and in the courtroom.

The weapon exhibited by the People was found by a police officer under a mattress in the bedroom of the defendant's father in the defendant's residence — though defendant's father testified that it was found on top of the clothes in a drawer. It was established that the defendant did not actually own the weapon, but it was owned by Ricky Witherspoon, a man who had been sitting at the bar at the time the robbery occurred. Three days after the robbery, defendant and Witherspoon were apprehended by the police running from a home on Lynch Avenue. Defendant and Witherspoon were arrested at this time.

Defendant raises several issues on appeal. He claims that he was twice placed in jeopardy; that he was denied his constitutional right to a speedy trial; that the State failed to prove him guilty beyond a reasonable doubt; that the court committed prejudicial error in permitting the gun to be introduced into evidence; and that closing arguments of the State's Attorney contained improper remarks which prejudiced his right to a fair trial.

Defendant claimed that double jeopardy resulted from the fact that a mistrial was declared and he was again placed on trial. The record shows that two days after the first trial commenced the defendant's attorney moved the court to grant a mistrial because prior to reconvening a juror sitting in the jury room had listened to a conference between the defendant and the defendant's attorney. The motion was granted and defendant now claims that the trial judge should not have granted the motion because he had other alternatives.

• 1 We do not agree that these proceedings in the trial court placed defendant in double jeopardy. On this point our recent decision in People v. Hill, 34 Ill. App.3d 193, is dispositive. Equally applicable here is the following from Hill:

"In the instant case there is no evidence or suggestion of judicial or prosecutorial overreaching as that phrase is described above. There was, therefore, no double jeopardy violation when defendant was retried following the granting of his motion for a mistrial." 34 Ill. App.3d 193, 197.

Defendant maintains that since he was not retried until 82 days after his mistrial and 164 days after his arrest, his constitutional right to a speedy trial was violated and that therefore his conviction should be reversed.

Defendant was arrested on November 23, 1973. On February 11, 1974, he was brought to trial. On February 13, the motion for a mistrial was granted. He was retried on May 6-164 days after his arrest and 82 days after the declaration of a mistrial. On April 4, 152 days after his arrest, a motion for discharge was filed but was denied.

The question we must determine is whether or not a new trial occurring 82 days after the declaration of a mistrial is an "unreasonable" length of time and violative of ...


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