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People v. Smith





APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT: Defendant, Donald Smith, was charged with two counts of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2.) After a bench trial, defendant was found guilty as charged and sentenced to 8 to 24 years' imprisonment. Defendant now appeals and presents three issues for our review: (1) whether the State, by delaying indictment of defendant and by failing to respond to defendant's request for discovery, violated defendant's right to due process by forcing defendant to trial with unprepared counsel; (2) whether the trial court erred in finding defendant guilty of both counts of armed robbery; and (3) whether defendant's sentence was excessive in light of an accomplice's lesser sentence. A summary of the facts follows.

Charlie Berry owned a barber shop. He was in his shop with a friend, Frank Madison, and was working on a customer when defendant entered. Defendant stated that he wanted a haircut and sat down to wait. While defendant waited, he was joined by another individual who indicated that he was with defendant. As Berry worked on the customer, defendant produced a gun and announced, "This is a stick-up."

Defendant took an overnight bag from a display counter and forced Berry and the customer into a back room. On defendant's order, the other individual forced Madison into the back room also. Once there, both Berry and Madison were relieved of their wallets, but the customer was not robbed. Defendant and his accomplice then locked their victims in the back room, rifled the cash register for coins, and departed.

After 5 or 10 minutes, the victims managed to break out of the room, and upon going out to the street, observed their assailants in the custody of the police.

The evidence disclosed that some youths had observed the robbery in progress and summoned the police to the scene. Upon arrival, the police saw no one in the shop, but did observe defendant and his accomplice running down an alley. Although ordered to stop, both men continued to flee. Defendant was pursued, apprehended, and found to be in possession of a revolver, a wallet, and an overnight bag containing $7.50 in coins. Defendant's accomplice was also apprehended nearby.

Both men were brought back to the barber shop and instantly identified by Berry and Madison as the perpetrators of the robbery. Berry later identified the wallet and overnight bag recovered from defendant as his property which was taken during the robbery.

Defendant admitted being in the barber shop but said he went to the shop to collect $100 owed him by Berry. Defendant asserted that Berry conducted gambling games in the rear of the shop and had borrowed $100 from defendant the previous week while they had been gambling.

On the day in question, defendant went to the shop armed with a gun because Berry and Madison were known to carry weapons. When defendant entered the shop, Berry was busy with a customer and told defendant to wait. While waiting, he was joined by a friend. At this time, there were five or six individuals gambling in the back. Defendant became impatient waiting for Berry, and he and Berry got into an argument.

Both men went into the back, and, although a scuffle ensued, neither man drew a gun. Defendant left the shop without getting any money and started down the alley to join his friend who had left earlier when the fight broke out.

Just as defendant was about to enter his friend's house, a police officer arrived with his gun drawn. He did not run from the officer, nor did he have a wallet or overnight bag when arrested.

Defendant initially contends that because the State delayed indicting him and failed to respond to his request for discovery, he was denied due process by being forced to trial with unprepared counsel.

Defendant was arrested on August 9, 1974, and thereafter remained in custody, but was not indicted until November 18, 1974. On December 4, 1974, defendant was arraigned and counsel appointed to represent him. On that same date, defendant's counsel served the State with a motion for discovery. On December 6, 1974, the 120th day of defendant's incarceration, his case was called for trial.

Defendant's counsel answered ready and demanded trial. After the court informed defendant of his right to a jury trial and after defendant waived that right, the following colloquy occurred:

"Defendant's counsel: For the record, I would state that I am not actually prepared for trial, and it is against my recommendation to go to trial today. However, I ...

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