APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, DeLouis Sibley (defendant) was found guilty of armed robbery and sentenced to 6 to 18 years. In his appeal he contends solely that he was deprived of his statutory right to a speedy trial. Ill. Rev. Stat. 1973, ch. 38, par. 103-5.
After disposition of defendant's motion for substitution of judges, the trial was continued a number of times by agreement of the parties or on defendant's motion. On June 17, 1974, defendant answered ready for trial. The parties agree that October 11, 1974, was the 116th day in the calculation of expiration of the statutory period and that October 15, 1974, was the final permissible day for commencement of trial.
On October 11, 1974, defendant then being in custody, the State moved for an extension of time for trial because of the unavailability of a material witness. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(c).) This witness was Mack Johnson, victim of the armed robbery allegedly committed by defendant. The petition for extension was unverified and was signed by an assistant State's Attorney. It alleged that attempts were made by an investigator to locate Johnson on October 3, October 7 and October 8, 1974. It further alleged that on each of these dates this attorney had spoken to the victim's sister, Mary Johnson. She had informed him that, some three weeks after defendant's arrest, Mack Johnson had been threatened by a person who had represented that she was defendant's sister and was also a policewoman. Mary Johnson also stated that on subsequent dates written threats had been slipped under the door of Mack Johnson's home. As a result, Mr. Johnson's wife became distraught and left Illinois and he had gone to find her.
The trial court conducted a full hearing on this petition. The police investigator in effect verified the principal allegations of the petition with reference to his efforts to locate Mack Johnson, the victim, commencing with October 3, 1974. Mary Johnson, sister of the victim, testified that she did not know where her brother was, but, that he had received notes put under his door. Also, the victim's wife had told the witness that she had left the city a short time after these notes had disappeared as a result of a burglary of their home. In addition, this witness testified to threats made to the complaining witness by some "nice looking" young lady about 24 years old who had told him that she was a sister of the defendant and that, if the victim appeared in court, "he would be in trouble."
In response, the defendant called his mother who testified that defendant had three sisters. One of these ladies, some 35 years old, was unable to appear in court because she was working and was the sole support of four children. In addition, the two remaining sisters of defendant both testified that they did not at any time threaten Mack Johnson, had never seen the man, had never told him that they were policewomen, and never placed letters under the door of his apartment. Both of these witnesses testified that they had no contact with defendant subsequent to his arrest. Defendant testified in his own behalf that on October 2, 1974, he was present in court and an assistant State's Attorney told the judge that the witnesses, including Mack Johnson, were present in court on October 2, 1974, but the court had continued the case because the State's Attorney was engaged in another trial. An assistant public defender testified that on August 6, 1974, he had spoken to a third person named Katy Jones who stated that she had seen Mack Johnson, the victim, on the preceding day.
No objection was made by either side to those portions of the above summarized testimony which were hearsay. Therefore, the trial judge would have been obliged to give all of the hearsay evidence "its natural probative effect." People v. Akis (1976), 63 Ill.2d 296, 299, 347 N.E.2d 733.
At the close of the hearing, the court heard argument of counsel. Before arguments were completed, the court stated:
"At this point I will grant an individual bond in the amount of $20,000. I would release Mr. Sibley on that bond. I would continue the matter until November 15 on that date for trial."
Counsel for Mr. Sibley then requested that the court wait for "a moment." After a pause, defense counsel, Mr. Goldberg, stated:
"Judge, prior to issuing an `I' Bond we would ask the Court for a ruling on the motion.
"THE COURT: I would deny the motion for the extension of the term."
"Mr. Goldberg: You're denying the motion for ...