APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Adrian Green (hereinafter defendant) was charged in a single indictment with three counts of murder of Andrew Mitchell (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), and 9-1(a)(3)) and one count of attempt armed robbery of Andrew Mitchell (Ill. Rev. Stat. 1971, ch. 38, pars. 8-4 and 18-2). A jury trial resulted in a verdict of not guilty on the murder charges and guilty on the attempt armed robbery charge. Judgment was entered on the verdict and defendant was sentenced to three years and four months to ten years in the Illinois State Penitentiary. On appeal, defendant makes the following contentions: (1) defendant's motion for discharge should have been granted because the trial judge erroneously allowed a 60-day extension of the statutory term for trying defendant; (2) defendant was erroneously denied the right to a hearing on an oral motion to suppress identification testimony; (3) the State's failure to comply with discovery rules requires reversal of defendant's conviction; and (4) the State failed to prove defendant guilty beyond a reasonable doubt.
One Clinton Matthews testified that, on 2 April 1972 at approximately 3 a.m., he and Andrew Mitchell, now deceased, left an establishment called Turner's Blue Lounge located at 40th Street and Indiana Avenue in Chicago. They were walking south on the west side of the street when three men unexpectedly came out of a building entrance and walked past them. Matthews became apprehensive and placed a pocket knife in his hand. A single man, not one of the three who came out of the entrance, ran across the street from the east side towards Matthews and Mitchell. The man approached them with a pistol drawn and pointed at them, and said, "it's a stick-up" and "drop your knife." On cross-examination, it was brought out that before the grand jury Matthews had testified only that the man said "drop your knife."
The area was sufficiently illuminated by street lights to give Matthews a clear view of the man. Matthews observed the assailant, at close proximity, for about 30 seconds. He described the man as between 5'10" and 6', about 150 pounds, brown skin, wearing a coat which reached below his knees and a turned down hat. Over objection, the man was identified by Matthews, in court, as the defendant. Hence, Matthews, as an eyewitness, identified defendant as the person who committed the attempt armed robbery.
When defendant turned his head to see if anyone was around, Matthews ran south in the direction of 43rd Street, leaving Mitchell and defendant behind. When he was between 42nd and 43rd Streets, Matthews heard a shot fired. When he arrived at an establishment on 43rd Street called the Music Box Lounge, Matthews attempted to call the police. However, the phone there was not working and he did not in fact contact the police until two days later. Matthews' explanation for the delay was that he was frightened because he did not know "what kind of friends [defendant] might have."
Although Matthews could not testify as to the results of the shot which he had merely heard, several other witnesses did. Ollie Thomas, a Chicago police officer, testified he was off-duty, driving north on Indiana in his own car, when he stopped for a traffic light at 41st Street. There he observed four men running east on 41st Street. One was wearing a trench coat. He was, however, too far away to make an identification. When Thomas pulled away from the light, still going north on Indiana, he saw a man staggering in the center of the street. The man was subsequently identified as Mitchell. Thomas brought his vehicle to a stop. Mitchell collapsed and Thomas pulled him off to the side of the street so that he would not be run over by passing traffic.
Another witness, Donald Larrue, testified he was with defendant and three other friends at 41st Street and Indiana on 2 April 1972, at about 2:30 a.m., having come from a party with them. Larrue left the group on the northeast corner of the intersection and walked north, on the east side of Indiana, towards a restaurant at 40th Street. As he approached the restaurant, he heard a shot behind him. Larrue turned and observed a man stagger across the street. Larrue further observed another man drag him between two cars.
John Johnson was the only witness who testified that he saw the shooting. At the time of the incident, Johnson was walking south on Indiana Avenue from 40th Street to 41st Street. He saw three men near 41st Street, about 40 to 45 feet away from him. One man was holding a gun. Johnson recognized this man as defendant, whom Johnson had known for four years. One of the men, not defendant, ran south toward 41st Street. Johnson heard a shot and observed a flash from defendant's gun. After the shot was fired, defendant ran east on 41st Street.
Defendant was arrested that same morning in the apartment of one Margaret Kuykendall. A gun recovered in the apartment was later identified as the source of the bullet which caused Mitchell's death.
Defendant's first contention on this appeal is that his motion for discharge should have been granted because the trial court erroneously extended the statutory term for trying defendant. This contention is predicated on two subcontentions: (1) no sworn testimony was introduced by the State in support of certain allegations contained in its petition for extension, which allegations had been specifically denied by defendant; and (2) the informal evidence brought to the trial court's attention was insufficient to sustain the State's burden of proving those allegations.
The pertinent statute is section 103-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 103-5), commonly referred to as the Fourth Term Act. It provides in part as follows:
"(a) 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 * * *
(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days."
Resolution of defendant's contention requires a detailed examination of the circumstances relating to the State's petition for extension. Defendant was arrested on 2 April 1972 and held without bond in the Cook County Jail until his trial on 11 December 1973. Continuances were granted either on motion of, or by agreement of, defendant on 14 July 1972, 18 July 1972, 27 July 1972, 11 August 1972, 16 August 1972, 31 August 1972, 22 September 1972, 13 October 1972, 4 December 1972, 2 February 1973, 15 March 1973, 30 April 1973, 9 May 1973, 18 May 1973, and 21 May 1973. This last continuance was to 20 June 1973. All subsequent continuances were on order of the court or on motion of the State. These were obtained on 20 June 1973, 23 July 1973, 27 August 1973, 10 September 1973, and 9 October 1973.
On 16 October 1973, two days prior to expiration of the term, the State presented its "Petition For An Extension of Time Under the 4th Term Act." The allegations of the petition were as follows:
"1. That a material and essential witness in the above entitled and numbered indictment is one Dale Kuykendall of 4120 South Prairie, Chicago Illinois.
2. That a material and essential witness in the above entitled and numbered indictment is Margaret Kuykendall of 4120 South Prairie, Chicago, Illinois.
3. That the State's Attorney of Cook County has exercised due diligence to produce the presence of this witness [sic], Dale and Margaret Kuykendall, before this Honorable Court on 9 October 1973, on which date the above captioned cause was set for trial.
4. That since April 18, 1973, several attempts have been made to locate the above material witnesses but at the present time he [sic] cannot be located ...