APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant, James Watson, was charged by indictment with the offense of murder. (Ill. Rev. Stat. 1973, ch. 38, par. 9-1.) After a jury trial defendant was found guilty of voluntary manslaughter. (Ill. Rev. Stat. 1973, ch. 38, par. 9-2.) Judgment was entered on the verdict and the defendant was sentenced to not less than four years nor more than twenty years in the penitentiary. Defendant now appeals this conviction.
Defendant presents two contentions in this appeal: (1) he was denied his right to a speedy trial when the trial court improperly granted the State's motion for an extension of time; (2) the prosecutor's closing argument to the jury included improper remarks which were so prejudicial as to deny the defendant a fair trial.
We affirm the conviction.
We first consider defendant's contention that he was denied his right to a speedy trial. The speedy trial act (Ill. Rev. Stat. 1973, ch. 38, par. 103-5), provides in relevant part:
"(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."
The defendant was arrested on May 28, 1974, and remained in custody until his trial on March 10, 1975. He answered ready and demanded trial on September 13, 1974, and the case was subsequently continued, either by motion of the State or by order of court, until January 10, 1975, the 119th day of defendant's term. On that day the State moved for a 60-day extension of time in which to try the defendant. Their petition alleged that King Ward and Tyrone Jones were material and essential witnesses, that due diligence had been exercised by the State in trying to produce them, and that there was good reason to believe that the witnesses could be produced at a later date. Defendant objected to an extension and denied the State's allegations. The State then presented evidence to support their allegations, in compliance with People v. Bey (1973), 12 Ill. App.3d 256, 298 N.E.2d 184. Defendant's sole contention with respect to this issue is that the State did not establish that they had exercised due diligence in securing the presence of the witnesses within the 120-day term. We disagree.
At the hearing Michael Ficaro, an assistant State's attorney involved in the preparation of the case from its inception until January 7, 1975, testified as follows: King Ward had testified at the preliminary hearing and his testimony was the basis for the case being bound over to the grand jury. Both Ward and Tyrone Jones were occurrence witnesses. Up until January 6 or 7, 1975, Ficaro believed he had information as to their whereabouts and thus had no reason to believe that they would be unavailable on the trial date. The latter part of December 1974, investigators had been assigned to locate several witnesses, including King Ward and Tyrone Jones. Ward and Jones had not yet been located.
Investigator Philip Ducar testified as follows: Two or three days after Christmas 1974, Ficaro asked him whether King Ward and Tyrone Jones would be available for trial. Ducar told him that they had been available previously; that they had "come down here" before, and he saw no reason why they would not be available in the future. A few days after New Year's Day he first learned that they could not be located. On the 5th or 6th of January 1975, Ducar went to Ward's address but found the family had moved; he traced Ward's mother through telephone records and she promised him she would get Ward's new address and telephone number; he tried to trace Ward through his place of work but the company had gone out of business; about an hour before the hearing Ward's mother told Ducar that Ward lived in the area of Quincy Avenue and Cicero. Ducar had also, on two occasions, gone to the area of Tyrone Jones' residence to try and locate Jones. He spent three or four hours looking on the day of the hearing and two or three hours earlier in the week, learning that area residents believed Tyrone Jones to be in the Army. Ducar had been told that efforts were under way to locate Tyrone Jones through Army authorities.
Investigator Russell McKibben, assigned to the case the day before the hearing, testified that he had just learned that the last name of Tyrone Jones was actually Barlow; that he believed he could find Tyrone Barlow, and that Mrs. Ward had told him that she expected to hear from King Ward on Saturday, the day after the hearing.
Defendant contends that a lack of diligence on the part of the State is established by the late date on which they made efforts to locate the two witnesses. In support of this defendant cites People v. Shannon (1975), 34 Ill. App.3d 185, 340 N.E.2d 129. In that case the State was granted an extension of time on the final day of the four-month period. The appellate court reversed the defendant's subsequent conviction and ordered that he be discharged. But the case is clearly distinguishable on its facts. Two of the three witnesses involved in that case were policemen who were on vacation on the original final trial date. The State first tried to secure their appearance only four days before that date, even though the police vacation schedules were prepared fourteen months in advance. The third witness was not mentioned in the petition for an extension. The State first tried to locate him only six days before the trial date, even though the record showed that 2 1/2 months before the trial date, the victim's wife had learned that this witness had gone to St. Louis. Unlike the case at bar, in Shannon there was evidence that the State had reason to know long before the trial date that their witnesses might not be available for trial.
• 1 It is well settled that the power to grant an extension of the 120-day period is discretionary with the trial judge, and a reviewing court should not disturb that judgment unless there has been a clear abuse of that discretion. (People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230; People v. Franklin (1976), 42 Ill. App.3d 408, 355 N.E.2d 634.) The trial judge expressly found that the State had exercised due diligence in attempting to locate these witnesses, and that there was reason to ...