APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
A jury convicted the defendant, Alfred Bracey, of the murder of Arthur Marsh, of the attempt murder of Joe Watson, of aggravated battery, of the unlawful use of weapons and of the felonious unlawful use of weapons. He was sentenced to 15 to 30 years in the penitentiary for the murder of Marsh and 4 to 16 years for the attempt murder of Watson; the aggravated battery verdict was merged into the attempt murder verdict. The unlawful use of weapons count was merged into the conviction for the felonious unlawful use of weapons charge, and Bracey was sentenced to 3 to 9 years in the penitentiary on that verdict. All sentences were to run concurrently.
On appeal, Bracey seeks the reversal of his convictions, raising four issues for review: (1) whether he was denied his statutory and constitutional rights to a speedy trial; (2) whether he was deprived of a fair and impartial trial because of the joinder of an enhanced weapons count with the other unrelated charges brought against him; (3) whether he was denied due process of law because certain identification evidence was admitted at trial, and (4) whether the unauthorized communications between the court and the jury deprived the defendant of his constitutional right to a trial by jury.
The shooting for which Bracey was convicted occurred on January 2, 1972, in the Flamingo Lounge in Chicago. On that date, between 2 a.m. and 3 a.m., a man entered the lounge, walked to a point approximately midway down the length of the bar and, after standing silently for about two or three minutes, took a gun from his pocket and began firing. There is some discrepancy as to the number of shots which he fired; one witness claimed he heard four to five shots while another witness testified as to only two shots. At the time of the shooting there were approximately 15 to 25 people in the lounge; one patron, Arthur Marsh, was killed and another patron, Joe Watson, was wounded. Following the shooting the man returned the gun to his pocket and walked out of the bar.
The police arrived at the lounge several minutes after the altercation. Lionell Stansberry, the manager of the lounge, and Cedric Tibbs, a patron, provided the police with a general description of the assailant; both described him as a black approximately six feet tall, weighing about 150 pounds, with a short "natural" haircut, and wearing a black and gray "checkered" or "plaid" three-quarter length coat with dark pants. This description was dispatched over the police radio.
Officers Cooley and Starcevich of the Chicago Police Department, patrolling in the near vicinity, heard the broadcast. They subsequently questioned five individuals meeting the radioed description of the gunman; the last one questioned was Bracey. The officers first noticed Bracey as they observed an altercation across the street from their patrol car. Officer Starcevich testified that as he left his patrol car and began crossing the street to investigate, he noticed that one of the participants in the disturbance matched the radio description of the gunman at the Flamingo Lounge. As he drew closer, Starcevich testified, he saw a bulge in the rear pants pocket of the individual matching the assailant's description; a "pat down" revealed that the man was carrying a .38-caliber Colt revolver. This individual originally identified himself as Alvin Jones, but subsequent investigation revealed that his name was Alfred Bracey. At the time, Bracey was wearing a gray and black checkered coat and dark pants. He was arrested for the unlawful use of weapons.
Upon instructions from their supervisor, the officers proceeded to take Bracey to the Flamingo Lounge for the purpose of identification. The police summoned Stansberry and Tibbs out to the patrol car where Bracey was sitting handcuffed in the rear seat. The defendant was removed from the car. Standing on the sidewalk beside the patrol car, with his hands still bound behind his back, Stansberry and Tibbs identified Bracey as the assailant.
Although Bracey was arrested on January 2, 1972, his trial did not commence until April 30, 1974. Bail was originally set at $50,000, and subsequently increased to $100,000. Since Bracey was unable to make bond, he was in custody from the time of his arrest until the time of his trial. During the course of proceedings, the defendant had twice moved for dismissal of the action on the grounds that his right to a speedy trial had been denied; both motions were denied.
Bracey's first contention is that his right to a speedy trial has been abridged. The right to a speedy trial has both constitutional and statutory dimensions. Both the United States Constitution (U.S. Const., art. I, amend. VI) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) enunciate a right to a speedy trial. In addition, section 103-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 103-5(a)) mandates specific time limits within which a defendant must be brought to trial. Where, as in the present situation, the defendant is in custody, he must be tried within 120 days "unless delay is occasioned by the defendant." (Ill. Rev. Stat. 1971, ch. 38, par. 103-5(a).) Under the law controlling the present case (for offenses allegedly committed before March 1, 1977) where the delay is attributable to the defendant, the statutory period is tolled and a new period begins to run on the date to which the trial was delayed. (People v. Donalson (1976), 64 Ill.2d 536, 356 N.E.2d 776; People v. Zuniga (1973), 53 Ill.2d 550, 293 N.E.2d 595.) On appeal the defendant raises both statutory and constitutional claims.
Bracey first argues that between September 12, 1972, and April 16, 1973, a period of some 216 days, he continually answered in court as being ready for trial but that due to delays incurred either by the State or by the court, he was not brought to trial. The failure to try him, during this 216-day period, the defendant claims, constitutes a violation of the 120-day rule. The State counters that both the continuance granted on November 2, 1972, and the continuance granted on December 20, 1972, were sufficiently chargeable to the defendant so as to toll the running of the 120-day period. It is uncontroverted that prior to September 12, 1972, and after April 16, 1973, Bracey occasioned delay which effectively prevented a violation of the 120-day rule. We agree with the State that the delay in the trial occurring on November 2, 1972, was sufficiently "occasioned by the defendant" within the meaning of section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 103-5(a)) so as to toll the running of the 120-day period.
The question of the cause of the delay in the trial on November 2, turns upon the characterization of the following colloquy which took place in court on that date:
"[Mr. Welch, appearing for defense counsel Mr. Andrew; Mr. DiNatale ...