APPEAL from the Circuit Court of Cook County; the Hon. FRED J.
SURIA, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Barney Lonzo, appeals from a conviction of attempt murder and a sentence of 15 to 60 years imprisonment. The jury returned verdicts of guilty of attempt murder and aggravated battery, and judgments were entered on the attempt murder verdicts. On appeal defendant raises the following contentions: (1) he was improperly denied his statutory right to a speedy trial; (2) the trial court erred in excluding scientific evidence; (3) the trial court erred in allowing an Assistant State's Attorney to testify that defendant was guilty of the crime charged; (4) the trial court erred in admitting testimony that defendant committed other crimes; (5) the trial court improperly delayed a ruling on the use of an involuntary statement; (6) defendant was neither proved guilty as principal beyond a reasonable doubt nor was he accountable for the crimes of another; and (7) the sentence of 15 to 60 years was excessive.
In the early morning hours of Sunday, April 8, 1973, two Chicago policemen, Ernest Kanzler and John Ferrell, were shot and seriously wounded at an apartment building in Chicago, Illinois.
Curtis Bolton, the attendant at a Clark Oil gasoline station, called the police at 7 a.m. on the Sunday in question when he saw two men "lurking" behind the station. As the police arrived defendant and Daniel Underwood entered the hallway of a building located a short distance from the gas station. Defendant argues that Underwood compelled him at gunpoint to ascend the stairs while Underwood unscrewed a light bulb at the first landing. Two policemen, Kanzler and Albert Drink, then entered the building and told the men to come down. When Kanzler saw one of the men "hanging" over the bannister and pointing a gun at his head, he turned to escape injury. A shot was fired and Kanzler was hit in the leg. Drink then assisted Kanzler and arranged for further police assistance. At trial both Kanzler and Drink identified defendant as the assailant.
Subsequently defendant and Underwood fled through the apartment building. Fifteen-year-old Eugene Melton testified that defendant and Underwood came running through his family's apartment on the morning of April 8, 1973. Melton declined Underwood's request that he take a gun from Underwood.
Three policemen, Ferrell, James Cool and Guido Colonna, pursued a "huge male Negro" wearing a green jacket and carrying a large automatic pistol as he came through the alley and the gangway. Upon arrival at the back of the building, Ferrell was shot in the face from a distance of 20 to 25 feet. At trial Ferrell identified defendant as the man who shot him.
Bertha Young and her daughter, Annette, who also resided in the apartment building, testified that they admitted defendant and Underwood to their apartment when "they said it was police." Underwood gave Annette a gun and two metal pieces which at his command she hid in a closet.
The jury returned verdicts of guilty of aggravated battery and attempt murder, and judgment was only entered on the attempt murder. Defendant was subsequently sentenced to 15 to 60 years imprisonment.
Defendant's first contention is that the trial court erred when it denied his motion for discharge on the ground that he was not tried within 160 days from the date he demanded trial. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b).) Defendant claims that although he agreed to a continuance of a State motion from August 22, 1974, to August 28, 1974, this continuance in fact was neither sought nor caused by him and thus his motion for discharge should have been granted.
The record reveals that on June 17, 1974, the trial court ruled that certain statements of defendant were to be suppressed at trial because they were obtained as a result of the physical coercion of defendant. On August 1, 1974, the State filed a motion requesting a rehearing on the suppression ruling, which motion was set for hearing on August 22, 1974. The State alleged that an error existed in the transcript of part of the hearing on the motion to suppress. On August 22, 1974, however, while the court reporter who had prepared the transcript was in court prepared to testify, defendant failed to appear. Defense counsel apologized that the testimony could not be taken and suggested: "if the case is to be continued can we continue it for Wednesday, the 28th?" The trial court then continued the hearing on the motion to August 28, 1974.
In support of his contention that the delay on August 22 was not caused by him, defendant alludes to People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242; People v. Nunnery (1973), 54 Ill.2d 372, 297 N.E.2d 129; and People v. Shields (1974), 58 Ill.2d 202, 317 N.E.2d 529. In each case there was an analysis of the criteria for determining whether a defendant's acts in fact caused or contributed to a delay. The facts in each instance were carefully examined by the court "to prevent a `mockery of justice' either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him." Fosdick, at 529.
Defendant in the case at bar while on bond made his first demand for trial on July 15, 1974. Subsequently he filed his petition for discharge on January 6, 1975, 176 days from the date of his first demand for trial. During the intervening period, however, a hearing was set for August 22, 1974, because of a court reporter's typographical error. When defendant failed to appear for that hearing, defense counsel's offer to waive defendant's presence was declined by the trial court. Defense counsel then suggested August 28, 1974, as the continuance date of the case, and the court so continued the motion. No suggestion was made concerning any stipulation to the testimony of the court reporter.
• 1 We conclude that defendant has failed to overcome the onus of having caused the delay. Defense counsel himself suggested a continuance of the case rather than the motion and made no demand for trial at the time of the agreed continuance. Defendant's absence together with the actions of his attorney indicate a delay occasioned by defendant. We ...