APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Aaron Pinkston appeals to this court from a conviction, and consequent judgment, of guilt on charges of armed robbery and kidnapping, following a jury trial in Will County. Defendant was sentenced to concurrent terms in the penitentiary of 30 to 60 years for armed robbery and 3 to 10 years for the kidnapping. The sentences were to run consecutively following a sentence which defendant is serving for an unrelated offense.
From the record it appears that defendant was indicted on October 17, 1974, in the Will County Circuit Court. He pleaded not guilty on October 25, 1974, and a trial date was set for January 6, 1975.
Defendant was represented by retained private counsel until the first part of December 1974. At that time, on December 9, 1974, the State's Attorney and defendant appeared in court and reported to the court that defendant's retained counsel was expected to present a motion to withdraw on December 17, 1974. Such motion was made on December 17, 1974, and was granted by the court. The retained counsel gave defendant all of the discovery information which had been received from the State. The trial court continued the case for one week to permit defendant the opportunity to obtain other private counsel. At that time the court observed that the trial date of January 6, 1975, might not be feasible with newly acquired counsel for defendant, and that if the trial were not held on the previously set date of January 6, 1975, it might not be reached until sometime in April. On December 24, 1974, defendant appeared in court without counsel. At that time, the trial court denied defendant's pro se motion for a continuance, but appointed the public defender to represent defendant, and directed the clerk to notify the public defender of his appointment. On the same day, the clerk filed the notice of appointment and called the public defender advising him of the appointment. At the conclusion of the December 24 hearing, the assistant State's Attorney suggested that a hearing be held on December 27, 1974, but the trial court determined to wait until he heard from the public defender.
The public defender appeared in court with defendant on January 3, 1975, and presented a motion for continuance. The public defender stated he had interviewed defendant for only 1 1/2 hours and had not been able to establish a sufficient attorney-client relationship with defendant, and had not yet seen the discovery obtained from the State consisting of a 6-inch-thick sheaf of documents. The trial court observed that the public defender had great experience in reading police reports and that the issues in the case were not complicated. In an effort to help the public defender in his preparation, the court asked the assistant State's Attorney to give the public defender the names of witnesses actually expected to be called and a summary of the testimony of such witnesses. The trial court also ordered the State to make available all of the State's witnesses for interview by the public defender. The trial court, at the conclusion of the January 3 hearing, denied the motion for a continuance.
On January 6, 1975, the trial court heard and denied a defense motion for a change of the place of the trial. Defense counsel presented a motion for continuance on the grounds that defendant had a possible defense of insanity and that further time was needed to prepare the defense. The motion was supported by defendant's affidavit that he had been hospitalized in the care of two psychiatrists in 1969 and 1970 and that he suffered from headaches during the months before and after the alleged offenses. The trial court then reviewed medical records from the Department of Corrections which demonstrated that defendant had been examined by psychiatrists with the Department of Corrections, and that on three occasions from 1971 to 1974, defendant was found not to be suffering from any mental illness. Following such disclosure, the trial court denied the motion for continuance.
The trial of defendant began on January 6, 1975. Fourteen witnesses were produced by the State. Testimony concerning the armed robbery of a jewelry store by defendant came from two occurrence witnesses and the owner of the jewelry store who identified the stolen property. Testimony concerning the kidnapping came from four Joliet police officers and the hostage, all of such witnesses being occurrence witnesses. The remainder of the testimony concerned the collection, change of custody and identification of physical evidence. One piece of physical evidence was an enlarged photograph showing defendant holding a handgun at the head of a woman hostage. As we have noted, the jury returned verdicts of guilty against defendant on both offenses.
On appeal in this court, defendant contends that he was denied due process of law by being forced to trial by counsel who insisted that during the few days between his appointment and the trial date, he had lacked sufficient time to investigate the case against defendant and possible defenses.
• 1, 2 The granting of a continuance is within the discretion of the trial court. In absence of an abuse of discretion, a trial court's order granting or denying a continuance will not be disturbed. (People v. VanNorman (1936), 364 Ill. 28, 2 N.E.2d 891; People v. Lyons (3d Dist. 1975), 26 Ill. App.3d 358, 325 N.E.2d 89.) As noted in the VanNorman case, factors to be considered in reviewing a denial of continuance, are, the gravity of the offense, the number and availability of the witnesses, the nature of possible defenses, and other relevant circumstances.
In the instant case, the offenses of armed robbery and kidnapping were clearly shown. All the witnesses who were called by the State were made available for interview by defense counsel. The trial court reviewed defendant's claim of possible defense of insanity and found it not sufficiently meritorious to warrant a continuance for further exploration. The court, also, was aware of the fact that defendant was not lacking counsel, since, until mid-December of 1974, he had been represented by retained counsel, and such retained counsel was available to examine the possible defenses of defendant. Such counsel had also turned over to defendant the material which was obtained from the State by way of discovery. Defendant in his brief in this court contends that the trial court embarrassd him in his defense by not giving him time to investigate the insanity defense. From the record, however, it is clear that defendant had no basis for such a defense, since he had been examined several times, after the times he had referred to by a psychiatrist during the three-year period prior to the commission of the instant offenses and was found not to be suffering from any mental illnesses. Nothing in the motion presented by defendant would indicate that the defense of insanity was a viable defense in this case. The Supreme Court of this State has affirmed the convictions of defendants in a number of cases paralleling the instant case where a continuance was denied and in which the courts found there was no abuse of discretion. See People v. Lyons (3d Dist. 1975), 26 Ill. App.3d 358, 325 N.E.2d 89; People v. Solomon (1962), 24 Ill.2d 586, 182 N.E.2d 736.
Before it could be held that a motion for continuance based on a lack of preparedness has been improperly denied or that the court abused its discretion in denying such continuance, it must appear that the refusal to grant additional time has in some manner embarrassed the accused in his defense and thereby prejudiced his rights. (People v. Ritcheson (1947), 396 Ill. 146, 71 N.E.2d 30.) We find no such prejudice in the instant case relating to defendant's counsel. The trial commenced on the scheduled date of January 6, 1975, approximately eleven weeks after arraignment. Retained counsel was active for defendant until December 17, 1974, when that counsel was given leave to withdraw. The court also tried to facilitate the preparation of defendant's case, and expressed confidence in the ability of the public defender to properly represent defendant. The public defender performed competently throughout the trial and while representing the defendant. He filed and argued motions for a change in the place of trial and handled the trial of the case in a very capable manner. To the extent that defendant may not have had the attention which he desired, such circumstance arose from defendant's lack of cooperation with his counsel.
In any event, it is clear that defense counsel was adequately prepared to try this case. The evidence of guilt was overwhelming, and the only issue of any possible defense arose from the contention made by defendant that he had a possible insanity defense, which the trial court properly found to be deficient.
For the reasons stated, therefore, the judgments and sentences imposed by the ...