APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
MASSEY, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Franklin, was charged by indictment with the commission of the offenses of murder and attempt armed robbery in violation of sections 9-1 (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and 8-4 (Ill. Rev. Stat. 1969, ch. 38, par. 8-4) of the Criminal Code, respectively. Following his first trial, which resulted in a hung jury, the defendant was retried in another jury trial and was found guilty of both offenses. Subsequent to a hearing in aggravation and mitigation, the defendant was sentenced to concurrent prison terms of 35 to 105 years for murder and 6 to 18 years for attempt armed robbery. On appeal, the defendant challenges his convictions as well as the sentence he received on the murder count on the respective bases that (1) he was denied his right to a speedy trial when the trial court erroneously granted the State's request for an extension of the Fourth Term; (2) the prosecutor's conduct during the trial and his closing comments were improper and deprived him of a fair and impartial trial; and (3) since there was no justification in the harsh sentence he received for the offense of murder, his prison term should be reduced to 14 to 42 years.
A review of the record reveals that on the night of April 23, 1971, Samuel Brown was shot and killed by an unknown assailant subsequent to driving his daughter and grandchildren back to their home. Although the police officers, who investigated the homicide, were initially unable to discern who had shot Mr. Brown, a police firearms expert determined that a .32 caliber revolver, which had been recovered four days later from Stanley Bell and Otis Brown following their arrest for armed robbery, was the same weapon which killed Samuel Brown. While both Brown and Bell originally informed the police on May 3, 1971, that the gun was taken from a "winehead" two days prior to their arrest, they later admitted that their story was fictitious. Moreover, during the course of each individual's interrogation, the police received information regarding the identity of the individual who shot and killed Samuel Brown.
In response to the police officer's inquiries, Stanley Bell told them that on April 23, 1971, the defendant had asked him if he could borrow a .32 caliber revolver because he wanted to make some money to go bowling. After informing the defendant of the whereabouts of the gun, Bell proceeded to the bowling alley. At approximately 10 p.m., the defendant came into the bowling establishment and informed Bell that he had just shot a man in the neck while trying to rob him. He also related that he placed the gun back on Bell's porch where he originally found it. A few days later, the defendant came over to Bell's house and requested and received the spent cartridge from the gun so that he could "wear [it] around his neck."
Subsequent to both Bell and Brown voluntarily signing a statement obtaining their knowledge about the incident on April 23, 1971, the police attempted to locate the defendant and left a message at his home that they wished to speak with him. At approximately 10 p.m. on the same date that Bell and Brown were interrogated, the defendant entered the police station on his own volition and was met by Investigators Charles Grunhard and Peter Valesares. The defendant was then escorted into one of the offices in the station by Investigator Valesares and Detective John Sullivan and, after being advised of his constitutional rights to which he acknowledged his understanding, he was questioned about Samuel Brown's murder.
While the defendant initially denied any knowledge of the shooting, he stated (subsequent to being informed that Otis Brown told the police that he (the defendant) shot Samuel Brown) that he was near the scene of the shooting, and that Otis Brown was responsible for the victim's death. After Investigator Grunhard entered the room and the defendant related the same information he told the other police officers, the investigators decided to confront the defendant and Otis Brown. The two individuals met in the hallway of the station where the defendant accused Brown of being the assailant. Brown denied such accusation and then responded. "Why don't you just tell him you shot him. They already know everything * * *." Investigators Grunhard and Valesares both observed that the defendant appeared to be nervous and when the latter investigator ushered him back into the office, he stated "I did not mean to kill the man," and started to cry.
The defendant was indicted by the November 1971 grand jury of the circuit court of Cook County for the offenses of murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and attempt armed robbery (Ill. Rev. Stat., 1969, ch. 38, par. 8-4). On December 8, 1971, the defendant entered a plea of not guilty to said charges at his arraignment. After various pre-trial discovery motions submitted by both sides, the cause proceeded to trial in January 1973 and resulted in a hung jury and the declaration of a mistrial on January 31, 1973. By order of the trial court, the action was continued to February 9, 1973. Moreover, between February 19, 1973, and June 8, 1973, the case was continued several times either by agreement or on the defendant's motion. However, on June 8, 1973, the defendant answered ready for trial, thus commencing the 120-day period in which the proceeding was required to be held. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(a).) On October 1, 1973, just four days prior to the end of the above time period, the State moved for a 28-day extension of the Fourth Term which was objected to by the defendant. An evidentiary proceeding then ensued on October 4, 1973, and, after hearing investigators from the Cook County sheriff's police testify as to their unsuccessful efforts to locate Stanley Bell for the purposes of serving him a subpoena, the trial court granted the State's request and set the cause for trial on November 1, 1973.
On that date, the State commenced its case-in-chief by calling Samuel Brown's wife, daughter and son. At the completion of their examinations, testimony was elicited from several individuals including Stanley Bell *fn1, Otis Brown, Investigators Valesares and Grunhard, and the assistant State's Attorney who interrogated the defendant at the police station. Besides each individual testifying as to his involvement in the action, Otis Brown related that subsequent to his arrest for the armed robbery, Stanley Bell told him that he (Bell) hoped the gun would not come back "hot" because it was the same gun which the defendant had used to shoot a man. He also stated that a few days after the attempted robbery of the tavern, the defendant shouted an obscenity at him because he had been arrested with the "hot" weapon. Moreover, Investigator Valesares expounded that the defendant gave a definitive account in the police station of what transpired on April 23, 1971, without being first informed as to (1) the location of the victim's body nor (2) that the victim was sitting in a car when he was shot.
At the conclusion of the assistant State's Attorney's testimony, the State rested its case. After the trial court denied the defendant's motion for a directed verdict of not guilty, defense counsel proceeded to call various witnesses in his client's behalf. Richard Banks was the first witness called and he indicated that on the night in question, he saw the defendant at the home of Joyce Harris where he (Banks) was playing pool from 6 p.m. until 9:30 p.m. Such account of the defendant's whereabouts was corroborated by Joyce Harris who testified on direct examination that the defendant was at her home from 2 p.m. until 9:30 p.m. on April 23, 1971. On cross-examination, she testified that the defendant was the father of her child who was born approximately two weeks after the incident.
Subsequent to the defendant's mother testifying that her son told her at the police station that he informed the police that he "did it," the defendant took the stand in his own behalf. Besides stating that he was at Joyce Harris' house from 2:30 p.m. until 9:30 p.m. on April 23, 1971, the defendant unequivocally denied that he (1) attempted to rob or shoot Samuel Brown on the date in question; (2) had a conversation with Stanley Bell on such date in which he requested the latter's .32 caliber pistol; or (3) saw Otis Brown at the police station or that he accused him of having shot Samuel Brown. He expounded that when he was interrogated at the station by some investigators and the State's Attorney, he reaffirmed his lack of knowledge of the murder. However, he said that due to the repetitive questions as well as the threatening remarks made by the police, he became mad and told Investigator Valesares and then the State's Attorney that "if he wanted to make it that way I shot the man." Moreover, on cross-examination, the defendant acknowledged that he told his mother he had stated that he shot the man.
The defense rested at the conclusion of the defendant's testimony. The State then called three rebuttal witnesses. The first was Stanley Bell's brother who testified that he was present at the bowling alley on April 23, 1971, when the defendant came in and admitted that he was trying to rob an individual and while they were struggling, the gun went off. His testimony was succeeded by that of Investigator Valesares and the State's Attorney who questioned the defendant at the police station. Both individuals denied that the defendant ever told them during the course of their interrogations that "if that is the way you want it, then I did it." Thereafter, counsel for both sides presented their closing argument and the trial court instructed the jury. On November 15, 1973, the jury returned verdicts of guilty on both the murder and attempt armed robbery counts. Defense counsel then moved for a new trial as well as a pre-sentence investigation. The former post-trial motion was denied on December 19, 1973, and, after a hearing in aggravation and mitigation, the defendant was sentenced to concurrent prison terms of 35 to 105 years for the offense of murder and 6 to 18 years for the attempt armed robbery conviction. A timely notice of appeal was then filed with the circuit court of Cook County on January 2, 1974.
We first consider the defendant's contention that he was denied his right to a speedy trial when the trial court erroneously granted the State's request for an extension of the Fourth Term. In support of such assertion, the defendant maintains that due diligence was not exercised by the State in locating Stanley Bell before the expiration of the Fourth Term. He argues that the State knew that it was dealing with a non-cooperative witness as evinced by the difficulty it had in getting Bell to testify at the first trial. Moreover, the fact that the State (1) waited until September 19, 1973, to locate him and (2) made no effort to find him on September 20, 1973, September 25, 1973, September 26, 1973, or between September 29, 1973, to October 4, 1973, the day of the extension hearing, adds further credence to his position that the State did not exert due diligence and hence, violated his right to a speedy trial. We are not in accord.
• 1 Pursant to section 103-5(a) of the Criminal Code, any person in custody for an alleged offense is required to be brought to trial within 120 days from the date he was taken into custody unless such person causes a delay in the proceedings. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(a).) However, (1) where the State has exercised due diligence to obtain material evidence and (2) there are reasonable grounds to believe that such evidence may subsequently be obtained, the legislature has delineated an exception to this 120-day rule and the court may continue the cause for a maximum of 60 additional days. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(c).) Moreover, judicial construction of this latter legislative enactment has indicated that whether the above prerequisites have been satisfied rest within the sound discretion of the trial court and its determination will not be disturbed on review unless there has been a clear abuse of that discretion. (E.g., People v. Shannon, 34 Ill. App.3d 185, 186, 340 N.E.2d 129, 131; People v. Moore, 27 Ill. App.3d 337, 340, 326 N.E.2d 420, 422.) In ascertaining whether such discretion has been abused, reviewing courts must view the trial court's decision in light of the situation as it existed at the time the matter was presented to the trial court and not as it might appear in retrospect or in view of subsequent events. E.g., People v. Arndt, 50 Ill.2d 390, 393, 280 N.E.2d 230, 232; People v. Poland, 22 Ill.2d 175, 178, 174 N.E.2d 804, 805.
Applying these legal precepts to the case at bar, it is apparent that there was ample evidence of the State's due diligence in attempting to locate Stanley Bell so as to warrant a 28-day extension of the Fourth Term. As the record revealed, at the hearing conducted on October 4, 1973, the State produced four members of the Cook County sheriff's police who respectively testified as to their concerted but unsuccessful efforts to serve Stanley Bell with a subpoena to appear at the defendant's trial. Investigator John Dalcason testified that on September 19, 1973, he attempted to serve Bell with a subpoena but the address he was given turned out to be the locale of an abandoned insurance office. Such fruitless effort was succeeded on September 22, 1973, when Investigator Gerald Walsh went with his partner to an address on South Michigan Avenue. When they reached such destination, they engaged in a conversation with Stanley Bell's two brothers who informed them that Bell was staying at an apartment building located on the 7100 block of South Bennett in Chicago. Upon arriving at the building, Investigator Walsh noticed the name of Bell on the mail box, but was unable to find him after knocking on the corresponding apartment door. On September 23, 1973, and September 24, 1973, Investigator Michael Baldwin and his partner visited the same apartment building and were equally unsuccessful in gaining entrance into the apartment where the defendant was allegedly an inhabitant.
The final attempt to serve Bell with a subpoena occurred on September 28, 1973, when Investigator Charles Davis gained entrance to the apartment located on Bennett and spoke with Bell's sister-in-law. She informed him that (1) Stanley Bell did not live in her apartment and (2) she was unaware of his whereabouts. Although she took the investigator's name in case something arose, neither she nor Bell himself contacted Davis subsequent to that occasion.
• 2 Considering the above evidence, we believe that the trial judge's decision did not amount to an abuse of discretion. Analogous to prior decisions (e.g., People v. Bey, 12 Ill. App.3d 256, 298 N.E.2d 184), the instant case involved repeated conscientious efforts on the part of law enforcement officials to locate Stanley Bell for the purpose of serving him a subpoena. As the evidence presented by the State at the hearing showed, (1) Bell's known addresses were visited frequently, (2) his family and friends were extensively questioned concerning his whereabouts and (3) numerous investigators were employed to locate Bell. Moreover, in light of the facts that (1) there was no evidence elicited at the hearing showing that Bell left the State and (2) Bell did testify at the defendant's first trial, there were reasonable grounds to believe that he could be found at a future date. We therefore conclude that the defendant's right to a speedy trial was not abridged and the granting of the 28-day extension of the Fourth Term was proper.
We are also of the opinion that there is no propriety to the contention that the prosecutor's course of conduct during the trial as well as his closing argument infringed the defendant's right to a fair and impartial trial. While the defendant cites eight instances in which the prosecutor's comments or closing remarks allegedly deprived him from receiving a fair trial, it is well settled in Illinois that even though every defendant is entitled to a trial that is free from improper comments or arguments that engender prejudice, his verdict will not be disturbed on review where such remarks did not (1) constitute a material factor in his conviction or (2) result in substantial prejudice to the accused. (E.g., People v. Lewis, 38 Ill. App.3d 995, 999, 349 N.E.2d 528, 532; People v. Davis, 38 Ill. App.3d 411, 347 N.E.2d 818, 824; People v. Walker, 29 Ill. App.3d 838, 841, 331 N.E.2d 267, 270.) Moreover, in determining whether the prosecutor's comments or arguments constitute prejudicial error, the test employed is whether the jury would have reached a contrary verdict had the improper remarks not been made. (E.g., People v. Davis, 46 Ill.2d 554, 560, 264 N.E.2d 140, 143; People v. Oliger, 32 Ill. App.3d 889, 892, 336 N.E.2d 769, 772.) Although the defendant claims that in various instances, the prosecutor's comments or closing remarks deprived him of a fair trial, we believe that in light of the above precepts as well as the ones subsequently enunciated, the defendant's assertion does not warrant a reversal of his conviction.
The defendant's initial chastisement of the prosecutor's conduct centers around the latter's remarks made during the redirect examination of Stanley Bell in which the following exchange took place:
"Q. Now, the Defense Attorney asked you a lot of questions about your character and everything. Whatever you are or whatever you have done you were good enough for Michael Franklin to hang around with you. Is that correct?
Mr. Karahalios: Q. Did you and Michael Franklin go ...