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People v. Boyce





APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.


After a bench trial the defendant was found guilty of rape (Ill. Rev. Stat. 1971, ch. 38, par. 11-1) and two counts of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2). He was sentenced to a term of imprisonment of from 5 to 15 years. On appeal, he contends (1) that he was not tried within the time provided by the Fourth Term Act (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)), (2) that he was denied his constitutional right of confrontation by the court's refusal to permit the use of certain photographs for impeachment, (3) that the court improperly refused to hear his offer of proof as to the potential testimony of an absent witness, (4) that the court considered a police report which was inadmissible hearsay, (5) that he was not proven guilty beyond a reasonable doubt, (6) that the court erred in refusing to enforce a subpoena for a witness at the hearing on his new trial motion and, (7) that improper and irrelevant information was considered in determining the sentence imposed.

On July 25, 1973, the defendant was indicted for aggravated kidnapping, rape, and two counts of armed robbery. After arraignment, the matter was continued on a number of occasions at the defendant's request. However, on April 16, 1974, while out on bail, the defendant answered ready and demanded trial. Several continuances were then granted on motions by the State. On September 18, 1974, the State filed a petition for an extension of time under the Fourth Term Act, pursuant to section 103-5(c) of the Criminal Code of Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(c)). After consideration of the petition, the trial court, under the impression that the statutory term would expire on September 23, 160 days from April 16, entered an order purporting to extend the term to September 30, 1974.

• 1 The defendant contends that he was not tried within 160 days of his demand for trial as required by section 103-5(b) (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)), and that, under the circumstances, the court erred in granting the extension of time. We reject this contention. Section 103-5(b) (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)) provides that "Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date the defendant demands trial unless delay is occasioned by the defendant * * *." (Emphasis added.) Where delay is occasioned by the defendant the statutory period does not continue to run, but rather is renewed and begins to run again from the date of such delay. (People v. Hamby (1963), 27 Ill.2d 493, 190 N.E.2d 289, cert. denied, 372 U.S. 980, 10 L.Ed.2d 145, 83 S.Ct. 1116; People v. Wilson (1974), 19 Ill. App.3d 466, 311 N.E.2d 759.) In the present case, because of delay "occasioned by the defendant," the statutory term had not in fact run when his trial commenced.

After the defendant's demand for trial on April 16, 1974, the court granted the State's motions to continue the matter to May 9, and then to June 6 for trial. On the morning of June 6, however, neither the defendant nor his attorney appeared in court. The defendant's bond was forfeited, an arrest warrant was issued, and the case was stricken with leave to reinstate. Not until after 2:30 p.m. did the defendant, accompanied by his attorney, arrive. At that time the court vacated the bond forfeiture, quashed the arrest warrant, and reinstated the case. The following discussion between the court and counsel ensued:

"Mr. Braden: We are answering ready for trial, Judge, as we have in the past. We answered ready —

Mr. Klapman [Assistant State's Attorney]: I want to object to the vacation of the bond forfeiture, then, your Honor.

The Court: I think it is very strange for a man who is not even here to say, we are ready for trial. I will set it for trial. What date do you suggest? * * *

Mr. Klapman: Early July date?

The Court: This will be your motion?

Mr. Klapman: If he is answering ready for trial at twenty-five to 3:00 in the afternoon, I will make it my motion.

The Court: Motion State, July 10th, with subpoenas, for trial."

• 2 We find that this continuance, although formally granted on the State's motion, was in fact "occasioned by the defendant." In determining whether delay is occasioned by the defendant, the applicable test is whether the act of the defendant contributed to cause the delay, or created the necessity for postponement for trial. (People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242; People v. Mack (1974), 17 Ill. App.3d 352, 307 N.E.2d 646; People v. Rice (1969), 109 Ill. App.2d 212, 248 N.E.2d 332.) We think it must be recognized that at a certain point tardiness on the defendant's part, while not creating an absolute necessity of postponement, renders continuance of the matter highly desirable in terms of the efficient administration of justice. The present case represents such a situation; while the defendant may have answered ready for trial, his actions had already made postponement the more practical alternative. Hence, in a very real and substantial way, the defendant "contributed to cause the delay, or created the necessity for postponement."

The defendant emphasizes quite strenuously the fact that the continuance in question was granted on the motion of the State. However, we do not find this fact to be controlling. It has been held that where an accused in any manner causes delay in trial by his own action, the statute is tolled, even if the accused did not seek a continuance. (People v. Leonard (1974), 18 Ill. App.3d 527, 310 N.E.2d 15; People v. Poteat (1973), 12 Ill. App.3d 1068, 299 N.E.2d 565.) We think the logic of this rule extends even to situations where, as here, a continuance is formally granted on the State's motion. In such a case the State's action in requesting a continuance amounts simply to an acquiescence in a delay necessitated by the defendant. Such acquiescence, like the State's agreement with the defendant on a continuance, does not relieve the defendant of responsibility for the delay. Further, the defendant points out that the record fails to show whether the State was in fact ready to proceed to trial on June 6, 1974. This argument also is of no avail. Even assuming, arguendo, that the State was not in a position to proceed, the delay would nonetheless be attributable to the defendant. Where there are two reasons for delay, one due to the State, and the other due to the defense, the fact that the delay was partly attributable to the defendant is sufficient to toll the statutory term. (People v. Partee (1974), 17 Ill. App.3d 166, 308 N.E.2d 18.) Moreover, in seeking a discharge, the defendant bears the burden of showing that his right to a speedy trial has been violated. This burden includes a demonstration that he caused no delay, which fact must be affirmatively established by the record. People v. Jones (1965), 33 Ill.2d 357, 211 N.E.2d 261, cert. denied, 385 U.S. 854, 17 L.Ed.2d 81, 87 S.Ct. 99; People v. Beyah (1976), 42 Ill. App.3d 962, 356 N.E.2d 960.

Therefore, we conclude that the statutory term, having actually begun on June 6, 1974, had not expired when the defendant's trial commenced on September 30, 1974. We need not, then, consider the issue of whether or not the court properly entered its order purporting to extend the term.

At trial, Eustis Benjamin testified that on February 19, 1973, at about 9 or 10 p.m., he was shoveling coal in the furnace room of a building at 1220 South Keeler Avenue in Chicago, where he worked as a janitor. Carrie Weaver, his sister-in-law, was also present. A man with a gun, wearing a scarf over his face, entered the room and announced a robbery. The man ordered Mrs. Weaver to toss her purse toward him. She did so. As he bent to pick up the purse, the scarf he was wearing slid down, exposing his entire face. The room was well lit, and Benjamin, standing only a few feet from the gunman, saw a scratch or scar on the left side of ...

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