APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of the murder of William Eskridge in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) and was sentenced to a term of imprisonment of not less than 18 years nor more than 36 years. He contends the trial court erred when it (1) stated his motion for discharge would toll his term for retrial, and (2) excluded and admitted certain evidence during the course of his trial.
Defendant's initial trial for this offense ended in a mistrial on June 7, 1974. At that time, he requested a copy of the report of proceedings from the first trial for use at any retrial. Thereafter, on June 20, June 24, June 28, July 11, July 19 and August 1, 1974, the case was called for trial and was continued either on defendant's motion or by agreement of the parties. On August 5, 1974, defendant acknowledged receipt of the report and requested another continuance. Defendant answered ready for trial for the first time on September 9, 1974. The State then continued the retrial on that date and again on October 7, November 6 and December 2, 1974. On December 16, the trial court continued the case due to a crowded calendar which would not permit it to proceed at that time. The State continued the case on December 30, 1974, January 2, 1975, and January 3, 1975, due to alleged difficulties in locating State's witness Sidney Davis.
On January 6, 1975, although defendant answered ready for trial the State requested a continuance. The trial court denied the State's request. Thereupon the State answered ready for trial. Defendant then orally moved for a discharge based upon the State's failure to afford him a retrial within a reasonable time period, citing People v. Aughinbaugh (1973), 53 Ill.2d 442, 292 N.E.2d 406. The State requested time to respond to the motion. After the trial court stated that the motion should have been in writing, it gave defendant the option of pursuing the motion, which would toll his term while the State obtained transcripts of the dates in question, or withdrawing the motion and proceeding immediately to trial. After a discussion between defendant and his counsel, defendant withdrew his oral motion for discharge.
The following pertinent evidence was adduced at defendant's retrial.
At approximately 4 a.m. on October 15, 1972, he was standing under an awning in front of the Brown Derby Lounge near the intersection of 51st Street and Indiana Avenue. Defendant, who was known to him as "Tony" and whom he had seen three or four times in the previous six months, was standing four or five feet to his left. When Sidney Davis told them they were blocking the doorway, he walked east on 51st Street to Drexel Liquors for a sandwich. Defendant was not wearing a hat and he had a short natural haircut.
He owned the Brown Derby Lounge at 209 East 51st Street on October 15, 1972. He had known defendant for six or seven months and had last seen him about one week before. He knew defendant by the name of "Tommy." At about 4 a.m. defendant and Alan Gilcrest were standing in front of the entrance to the Lounge obstructing the patrons. Defendant was wearing brown pants and jacket, a dark shirt and a brown knit lid or ski cap. He could not describe defendant's hair style because the knit cap covered most of defendant's hair.
As he was leaving, defendant stated that someone had been tampering with his car which was parked on Indiana Avenue. As they walked around the corner to investigate, they met two other men, but defendant said these men were not the ones who had been tampering with the car. Defendant's car had a coat hanger in place of an antenna. William Eskridge was standing at the bus stop on Indiana. Defendant took Eskridge by the arm and brought him to the car. At this time he was standing a couple feet from defendant and Eskridge and the lighting was good. Defendant said, "Let me tell you, this is my car and I don't want you f____g with it anymore." Defendant pulled a shiny handgun from some part of his body and hit Eskridge across the head with the gun. Eskridge did not speak and appeared to be helpless. As defendant struck Eskridge, the gun fired and Eskridge slumped over onto the car. He retreated and said, "Hey don't do that." Defendant fired two more shots directly at Eskridge. As he started back to the Lounge to call the police, he saw Eskridge fall to the ground and defendant walk around to the driver's seat of the car. Defendant and the car were gone when he returned to the scene.
Later that day Investigator Hawkins brought 10 to 12 photographs to his home. He identified defendant's picture as the man he knew as Tommy. On October 23, 1972, he identified defendant in a five man show-up.
During cross-examination, the State's objection to the question "Mr. Davis were you in fact aware that the State's Attorney's Office was attempting to locate you some weeks before this case went to trial?" was sustained.
He conducted an autopsy on the body of William Eskridge. The body had one bullet wound in the back of the neck and four areas where force had been applied resulting in slashes to the skin. The cause of death was the severance of the spinal cord due to the passage of the bullet.
Sergeant Granville Hawkins, Chicago Police Department
Over defendant's objection, he stated that he checked several names in the identification section of the department and also obtained several photographs including one of defendant. Sidney Davis identified defendant's picture. Defendant surrendered to him on October 23, 1972. The trial court sustained defendant's objection to the State's questions concerning whether it was common for someone who had committed a homicide to bring in a weapon when they surrendered to police. He identified a picture of a dark green 1966 Ford with a bent coat hanger for an antenna as being a picture of defendant's car.
She lived with defendant and their son. On October 14, 1972, at approximately 5:15 p.m. she and defendant were walking near 53rd and Indiana Avenue. Someone, who she was unable to describe as being either male or female or black or white, approached from behind and struck defendant with a hammer on the head and the back. She took defendant to Provident Hospital for treatment. When they left the hospital four hours later, defendant was wearing a bandage on the right section of his forehead. Upon their return home they went to sleep. Defendant slept in his shorts. Although she is a light sleeper, nothing awakened her that night. The next morning when she awoke defendant was wearing the same shorts. Defendant was also known as Tony, but not as Tommy. Defendant never owned or wore a hat.
On cross-examination she admitted that the assailant did not attempt to take anything from her or from defendant and that she did not call ...