APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Edward R. Gamble, was arrested April 5, 1973, and indicted for the murder of Richard Wright. After a bench trial he was found guilty of aggravated battery causing great bodily harm, and sentenced to the Illinois Department of Corrections for a term of 3 to 9 years. Defendant appeals and contends: he was denied a speedy trial; the trial court erred in denying his motions to quash arrest and to suppress statements; the trial court erred in allowing an unlisted witness to testify; and he was not proved guilty beyond a reasonable doubt. We affirm.
James Taylor testified at trial for the State. He knew defendant as "Sonny" and Wright as "Smiley." At about 8:30 or 9 a.m. on March 23, 1973, on his way to the Woodlawn Tavern, he spoke to Wright who was sitting on a fireplug near the tavern. He did not see a weapon in Wright's possession. Taylor then went into the tavern where he had a drink and greeted defendant who was also drinking. Defendant then left with a woman and returned alone about 10 minutes later. His hands were bloody and he had a bloody knife. He washed his hands and the knife, folded it and put it into his pocket. Before defendant walked out, one Henry Greene spoke with Taylor. Taylor then saw some of Wright's friends take defendant to an alley and beat him; a police wagon then took defendant away.
Investigator Robert Lewis of the Chicago Police Department testified for the State. On April 5, 1973, he and Investigator White were assigned to investigate the death of Richard Wright. They interviewed a number of people, including Taylor, and also talked with defendant in his home. Lewis told defendant he had received a message on March 31 to contact defendant, who now told Lewis that he wanted to talk with the police, that he was having trouble with some members of the Blackstone Rangers. Lewis asked if he wanted to accompany them to the station to view photographs to identify "the person who he had trouble with." Defendant went with the officers about 12:30 p.m., and they went into an interrogation room at the station where Lewis later told defendant he was under arrest. His Miranda rights were read to him and he indicated he understood them. When Lewis told defendant he was under arrest for stabbing Wright, defendant said he did not know Wright, but when asked if he knew Smiley, he replied that he did and had accidentally stabbed Smiley while fighting with the Blackstone Rangers. Lewis told defendant that Smiley had died, and asked if he wanted to make a statement to an Assistant State's Attorney. He told defendant he did not have to do this, but defendant said he wanted to. At about 1:30 p.m., Assistant State's Attorneys Klapman and Walter talked with defendant outside the presence of Lewis. Later, Lewis and White returned to the area where the stabbing occurred and interviewed Henry Greene. At about 8:30 p.m. Lewis told defendant there was an eyewitness and asked if defendant would give a written statement to the Assistant State's Attorney. Defendant said he would, and later met with Assistant State's Attorneys Sconza and Fagan and a court reporter.
On cross-examination Lewis stated that defendant was a suspect in the case when he and White went to defendant's home. Afterward, at the station, defendant told them his nickname was Sonny; he was then arrested and advised of his constitutional rights. Lewis also testified that defendant had been in the police station from about 12:30 p.m. to 9 p.m. prior to giving his statement to the Assistant State's Attorneys before a court reporter, and that at some periods defendant was handcuffed to the wall. Further, that before making such statement, Lewis had told defendant that a witness had been located who had seen the stabbing and that defendant's wife could also be charged with the crime since the witness placed her at the scene.
Assistant State's Attorney Neal Walter was called to testify for the State. The trial court overruled defense counsel's objection that Walter's name was not on the list of witnesses previously filed by the State and that there was no indication of the nature of his testimony before he was called. Walter testified that on April 5, at about 1:15 p.m., he and Assistant State's Attorney Klapman and Investigator White had a conversation with defendant, who told them of the trouble he had with the Blackstone Nation a year before the stabbing; that he was on probation for unlawful use of weapons; that on March 23, as he and his wife were talking to Smiley after they left the tavern, four men with weapons pulled up in a car and started to beat defendant; Smiley was between defendant and one of his attackers, and as defendant was wresting a knife away from an attacker Smiley was accidentally cut; also, that defendant told people in the tavern he had blood on his clothing because four men had attacked him.
The State offered into evidence the statement made by defendant before Assistant State's Attorneys Sconza and Fagan and the court reporter. After the trial court denied defense counsel's oral motion to suppress this statement, defense counsel stipulated that the questions and answers therein were asked and answered by the named parties on that date, and the statement was accepted into evidence. In the statement defendant stated that on March 23, when he asked Wright to repay a loan, Wright pulled a knife and said not to bother him. Defendant then got possession of the knife and when Wright said he would repay the loan, defendant stabbed him. When he saw that Wright was bleeding he offered to help him, but Wright said he would be all right and walked away. Defendant returned to the tavern and when the blood on his hands was noticed he explained that he had a misunderstanding with Wright and had cut him. Persons from the bar followed defendant outside and beat him into unconsciousness. A further stipulation was entered that if the coroner's pathologist was called he would testify that death was the result of stab wounds to the abdomen.
Defendant first contends that he was denied a speedy trial and was therefore entitled to discharge under Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). He was in continuous custody and on August 24, 1973, answered ready for trial. On December 20, 1973, the 119th day of his term, the State petitioned for a 60-day extension of the time in which to bring him to trial. The written petition alleged that Henry Greene was a material and essential witness, that due exertion had been exercised, that several unsuccessful attempts had been made to locate Greene, and that there were reasonable grounds to believe he would be located at a later date. The prosecutor stated in open court that Greene was "about the sole occurrence witness," and that police officers and two investigators for the State's Attorney were present in open court to advise that they had reasonable expectation of finding Greene with the assistance of Taylor, who had just been located and was present in court under subpoena. Further, that Taylor said he would assist them in their search for Greene. The prosecutor also stated that he was asserting as an officer of the court that Greene was an essential witness.
Defense counsel then objected to the petition as follows:
"Mr. Levinson: I am moving at this time to strike paragraph 3 as a conclusion. Moving at this time to strike paragraph 4 as a conclusion. Moving to strike paragraph 5 as a conclusion. I would ask the Court if the Court won't strike these paragraphs. I am objecting to a continuance. This is I believe the 118th day
Mr. Levinson: 119th day of the term. The case was set with subpoenas. There is no evidence within the petition, it isn't verified, no evidence within the petition that of what attempts have been made, why they have reasonable grounds to believe that they can find this witness. On those bases I am objecting."
The trial court then granted an extension to February 15, 1974, and also granted the State's motion to continue the case to January 23, 1974. Over objection by the State the court also reduced defendant's bond to $10,000 and released him on his personal recognizance. Thereafter, on January 23, defendant appeared and demanded trial; however, the court granted the State's motion to continue the cause until February 14. On February 14 ...