Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Frank J. Wilson, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Jerry King, was convicted of rape and burglary with intent to commit rape. He was sentenced by the circuit court of Cook County to concurrent terms of 10 to 30 years plus 5 years' parole on the rape conviction, and 6 to 18 years plus 3 years' parole on the burglary conviction. The appellate court, by order (58 Ill.2d R. 23), affirmed defendant's convictions and sentences (38 Ill. App.3d 1078). This court granted defendant leave to appeal.
The incident in question occurred at approximately 5:30 a.m. on March 7, 1974, in the second-floor apartment of a building where the defendant had formerly resided. The complaining witness informed the police that defendant was the man who broke through her kitchen door and assaulted her. Later that morning, defendant was arrested, taken into custody, and remained incarcerated until trial. At a hearing on March 27, defendant was represented by the public defender, and, following a finding of probable cause, he was bound over to the grand jury. An indictment was returned on May 27, charging defendant with rape and burglary with intent to commit rape. On June 17, 1974, defendant was arraigned, and the public defender was appointed to represent him. At the arraignment, a plea of not guilty was entered and defendant personally demanded trial. The State filed a motion for discovery but no motion was filed by the defense. Trial was set for June 24.
When the case was called for trial, the defendant again personally answered "ready" and demanded a jury trial, but his counsel objected and moved for a continuance. Counsel urged that despite his client's answer he was not prepared for trial and had so advised his client. He stated a continuance was needed to complete discovery and to locate "some witnesses." Counsel did not, however, disclose the identity of such witnesses, what efforts had been made to locate them, or what the substance of their testimony would be. The court responded by noting that the defendant had answered ready for trial twice and was entitled to a speedy trial. The court then ordered the State to turn everything it had in its files over to defense counsel.
A short recess was taken and, during a conference in chambers, defendant's counsel again argued that a continuance should be granted as the case had "only been up here for one week." The court indicated that it had postponed another trial in order to accommodate defendant's demand, and that it had admonished defendant when he demanded trial a week earlier that, if the State had its witnesses and was prepared to go to trial, no continuance would be granted. The court then denied defense counsel's motion for a continuance. Before returning to the courtroom, the defendant stated to the court, "I have a witness who I would like in this building," but that witness was never identified.
At trial, defendant was represented by two assistant public defenders. Following the close of the State's evidence, the defendant took the stand and testified that he had lived with the complaining witness prior to March 7, 1974, despite her earlier testimony to the contrary. He also stated that on the morning of March 7, at approximately 3 a.m. he and a friend, Lawrence Render, were helping another friend, Chris Harper, move a television set to Harper's apartment. According to defendant's testimony, Render left Harper's apartment when the trio was finished, but he (defendant) spent the remainder of the night in the apartment with Harper, awaking shortly after 10 a.m. Render's testimony corroborated the defendant's, but Harper did not testify at trial. A defense investigator stated that he had attempted to locate Harper at his reported place of work, but did not find him. On cross-examination, the investigator indicated this effort to locate the alibi witness was made only four days before trial.
Initially, defendant contends that the trial court committed reversible error in refusing counsel additional time to locate witnesses. Granting additional time is a discretionary matter, the abuse of which depends on the facts and circumstances existing at the time of the request. (People v. Solomon (1962), 24 Ill.2d 586, 589, cert. denied (1962), 371 U.S. 853, 9 L.Ed.2d 87, 83 S.Ct. 94; People v. Stokes (1960), 18 Ill.2d 371, 374-75.) Consequently, we evaluate the trial court's decision in light of the circumstances which existed at the time of the request.
Although counsel asked for additional time to locate "some witnesses," the trial court was not presented with any facts to indicate their identity, the materiality of their testimony, or the reasonable likelihood that they could be found. Counsel had had a week to locate these undisclosed witnesses, yet, at the time of the request, there was no showing of what efforts, if any, had been made to locate them. Counsel's attempt to locate the alibi witness was not presented to the court until during trial. Defendant, despite counsel's advice, informed the court that he was ready to proceed and demanded a jury trial. It also appears defendant had demanded a trial a week earlier. Considering the lack of information presented to the trial court at the time of the request and the fact that defense counsel had had a week to locate the witnesses, plus defendant's insistence on proceeding to trial, we hold that the trial court did not abuse its discretion in denying counsel's request for a continuance.
Following trial, counsel filed a section 72 petition alleging that certain of the complaining witness' children were discovered only after trial and, if available at trial, would have corroborated defendant's testimony that he had lived with them and their mother. Defendant now asserts he was deprived of the effective assistance of counsel for, had counsel had additional time to prepare for trial and complete discovery, the children's testimony would have been available at trial. The very fact that defendant testified he had lived with the complaining witness and her children makes untenable his later assertion that the favorable testimony of the children was discovered only after trial. Further, defendant was not prejudiced by the lack of the testimony which the children would have purportedly given since it would have been merely cumulative. The record indicates that at least one State witness and two defense witnesses, in addition to the defendant, testified that he had lived with the complaining witness. People v. Edwards (1973), 55 Ill.2d 25, 33-34, cert. denied (1974), 415 U.S. 928, 39 L.Ed.2d 486, 94 S.Ct. 1438; People v. DeMary (1967), 37 Ill.2d 364, 370.
It is also asserted that defense counsel did not have access to the transcripts of the preliminary hearing or grand jury proceedings and that they would have assisted them in preparing for trial and impeaching witnesses. The record shows that counsel did, in fact, have access to the transcript of the preliminary hearing, for it was used to impeach the complaining witness at trial. Counsel also had complete access to the State's files at trial. There is no indication in the record that the grand jury transcript was not included. Defendant's trial was not complex, and counsel conducted a vigorous defense, evidenced by their probing cross-examination of the State's witnesses and by the presentation of evidence. The public defender's office represented defendant at the preliminary hearing, at which the complaining witness had testified. Counsel, therefore, should have been well acquainted with the State's case prior to trial. Defendant was not denied the effective assistance of counsel. See People v. Lewis (1975), 60 Ill.2d 152, 157-58.
Defendant contends the trial court erred when it refused to permit his counsel to testify and explain the investigator's late attempt to locate the alibi witness. Defendant asserts counsel would have explained to the jury that no effort was earlier made to locate the alibi witness because counsel was appointed to represent defendant only a week before trial, and that this explanation would have minimized the jury's speculation that the alibi defense was fictional. He states that the error was compounded by the State's Attorney's closing remarks, which included a comment regarding defendant's failure to search for the alibi witness until shortly before trial.
Defendant's assessment of the impact of the investigator's testimony on the jury is mere conjecture. Further, the trial court has wide discretion in refusing to permit attorneys to testify at a trial wherein they also serve as advocates. (People v. Gendron (1968), 41 Ill.2d 351, 357-59, cert. denied (1969), 396 U.S. 889, 24 L.Ed.2d 164, 90 S.Ct. 179.) This is especially so where, as here, another witness was available to testify. Defendant could have testified, as easily as counsel, regarding their initial meeting and discussion regarding the location of witnesses. The State's Attorney's comment concerning the defendant's attempt to locate the alibi witness was proper inasmuch as the defendant raised the issue through the testimony of the investigator. People v. Swift (1925), 319 Ill. 359, 365-66.
Defendant also complains that he was prejudiced by the State's Attorney's closing remarks to the jury which indicated that, contrary to defendant's testimony, defendant never informed the police of his alibi. Defendant, however, failed to object to these remarks during argument, and the error is, therefore, deemed waived. (People v. Edwards (1973), 55 Ill.2d 25, 35, cert. denied (1974), 415 U.S. 928, 39 L.Ed.2d 486, 94 S.Ct. 1438.) Moreover, the error did not substantially ...