APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Ronald Williams, was tried and convicted by a jury for the offenses of murder and attempt armed robbery. The trial court entered judgment on this verdict and sentenced defendant to 20 to 60 years for the murder conviction and to 3 to 9 years for the attempt armed robbery conviction. The sentences were to be served concurrently.
Defendant now appels and makes the following contentions: (1) that the trial court erred in denying defendant's motion to discharge and in allowing the State to bring the defendant to trial 200 days after his initial incarceration; (2) that the trial court erred in denying the defendant's motion to suppress the confession because the State failed to sustain its burden of proving that the defendant made a knowing and intelligent waiver of his constitutional rights and that his confession was voluntary; (3) that the trial court erred in denying the defendant's motion to suppress the confession because there was no unequivocal and explicit finding of voluntariness as required by the Fourteenth Amendment; (4) that the trial court erred in giving the State's jury instruction regarding the voluntariness of the confession over defendant's objection because the statement was obtained in violation of defendant's constitutional rights; (5) that the warrantless arrest, search for and seizure of evidence was neither based upon probable cause nor justified by exigent circumstances and that the use of said evidence against the defendant at trial deprived the defendant of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fourteenth Amendment right to due process of law; (6) that the cumulative effect of the prosecutor's remarks so prejudiced the jury against the defendant as to deny him his Sixth and Fourteenth Amendment rights.
Defendant was found guilty by a jury of the crimes of murder and attempt armed robbery. Evidence produced at trial indicated that Allen Tatum had been shot to death in his apartment at 1627 West Washington in Chicago in the early morning hours of May 21, 1973. Two witnesses testified that around the time of the murder they heard three shots coming from the vicinity of Tatum's apartment and then saw several men run from that area and into a cab stand located at Ashland and Ogden Streets. One of the employees at the cab stand stated that between 2 and 3 a.m. the morning of the murder he saw two men run into the cab stand. This employee testified that he had seen these two men before and identified one of the men in court as defendant Ronald Williams.
Offered into evidence at trial was a Titan .25-caliber automatic pistol which was found cocked and loaded in the waistband of defendant's trousers when he was arrested. Ballistics tests indicated that this pistol fired the three bullets which killed Allen Tatum.
Also offered into evidence at trial was a written and signed statement the defendant gave the day of his arrest. In this statement defendant stated that shortly before the homicide he was in a bar near the area of the homicide. There defendant met several other individuals and together they subsequently decided to rob Allen Tatum. Arriving at Tatum's residence, defendant and his companions announced to Tatum that they were going to rob him. Defendant placed a gun to Tatum's head at which time one of defendant's companions grabbed defendant's hand and caused the gun to fire several times. Defendant and several of his companions then ran to the taxi stand at Ashland and Ogden Streets.
At trial, the defense called no witnesses and produced no evidence.
Defendant first argues that the trial court erred in denying his motion for discharge and in allowing the State to bring the defendant to trial 200 days after defendant's initial incarceration. The record in the instant case establishes that defendant was arrested and charged with the crimes of murder and attempt armed robbery on May 26, 1973, that he was indicted for the above crimes on August 12, 1973, and arraigned on August 29, 1973. At defendant's arraignment a public defender was appointed to represent defendant and the case was assigned to Judge Bailey.
Defendant appeared before Judge Bailey on August 29, 1973, and requested to go to trial immediately. The assistant public defender who was appointed that same day stated to the court that he had talked briefly with the defendant and advised him that in view of the nature of the charges a continuance should be requested in order that the public defender could file motions for discovery and familiarize himself with the case. The court, on its own motion, continued the case until the following day so that counsel might confer with his client.
When the case was called the following day, the prosecution announced ready for trial. The public defender again expressed his desire that the case be continued rather than tried that day. The defendant, however, persisted in his demand for trial. After informing the defendant of the inadvisability of going to trial immediately, the court granted defense counsel's motion for a continuance and continued the case until September 25, 1973. After the hearing on August 30, the defense filed a motion for discovery and at the hearing on September 25 the prosecution announced that it had complied with this motion for discovery. At the hearing on September 25, defendant again stated that he was ready for trial, but at the request of defendant's attorney the case was continued to October 18. On October 18, 1973, defense counsel was still not prepared for trial and the case was continued to October 26, 1973. On November 2, 1973, defendant filed a motion for discharge based on section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). The trial court ordered that this motion be denied. After a hearing on defense motions to quash the arrest and suppress statements, trial commenced on December 17, 1973.
Section 103-5(a) of the Code of Criminal Procedure reads, in pertinent part, "Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *." The uncontroverted facts in the instant case indicate that defendant was not tried within 120 days of his initial incarceration on May 26 and that defendant continually requested to go to trial immediately. However, it is also uncontroverted that the State, within 120 days of defendant's initial incarceration, answered ready for trial and that the continuances that extended the initiation of the trial beyond the 120-day period were requested by defendant's counsel so he could properly prepare a defense.
1 A situation similar to that in the instant case arose in People v. Carr (1972), 9 Ill. App.3d 382, 292 N.E.2d 492. In Carr, the public defender, in order to properly prepare a defense for his client, requested a continuance which delayed the initiation of the trial beyond 120 days of defendant's initial incarceration. Over defendant's strenuous objection, the trial court granted defendant's counsel's motion for a continuance. Noting that defendant never discharged his counsel and that if the trial court had acceded to defendant's demands the question would surely have arisen as to whether defendant had been denied effective assistance of counsel, the court on appeal in Carr ruled that the four-term act was not violated and that the trial court took proper action in granting the continuance. Similarly, in the instant case defendant never discharged his counsel and the trial court granted defendant's counsel's motions for continuances so that a proper defense could be prepared. In so doing the trial court did not err.
Defendant also cites Faretta v. California (1975), 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525, a case in which the United States Supreme Court ruled that a defendant in a State criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Defendant argues that the trial court's granting of defendant's counsel's motion for a continuance and failure to accede to defendant's request to be tried immediately was in derogation of defendant's right to proceed without counsel. This contention has already been rejected by this court in People v. Ford (1975), 34 Ill. App.3d 79, 339 N.E.2d 293. Furthermore, defendant in the instant case made no attempt to discharge his counsel or request to defend himself. Under such ...