APPEAL from the Circuit Court of Rock Island County; the Hon.
JOHN DONALD O'SHEA, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 13, 1977.
After a jury found the defendant, James Lewis, guilty of unlawfully selling heroin in violation of section 3 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22-3) the circuit court of Rock Island County sentenced him to a term of from 3 to 15 years imprisonment and imposed a fine of $5,000.
Defendant was originally tried and convicted on September 28, 1971, and sentenced to a term of 15 to 30 years imprisonment. On appeal to this court, the cause was reversed and remanded. (People v. Lewis, 12 Ill. App.3d 762, 301 N.E.2d 469.) The decision of this court was affirmed by the Illinois Supreme Court. (57 Ill.2d 232, 311 N.E.2d 685.) A retrial began on February 5, 1976, which resulted in a finding of guilty. It is from the judgment of conviction and sentence imposed on retrial that defendant has perfected this appeal.
On June 3, 1971, Illinois Bureau of Investigation agent Grover Webb and a paid informant, Nancy Wires, went to the Armstrong residence in Rock Island for the purpose of making a controlled narcotics purchase. Webb testified that he handed defendant $100. Webb then observed defendant reach into the blouse of Patricia Armstrong and remove a plastic sack containing several aluminum foil packets. Defendant removed one of the packets and handed it to Webb. The packet was to contain one teaspoon of heroin. Later chemical analysis established that the white power in the packet did contain heroin.
Shortly after the purchase, Webb stated he opened the aluminum foil packet in the presence of three law enforcement officials who observed Webb and special agent Erdman place their initials and the date of June 3, 1971, on a small piece of paper. The foil packet was then closed with the initialed piece of paper inside. The packet was then sealed into an evidence envelope. At trial, an aluminum foil packet was introduced into evidence after Webb had identified it as similar to the one purchased from defendant on June 3, 1971. The packet was then opened and an initialed piece of paper withdrawn from inside the packet. Both Webb and Erdman identified the initialed paper as the one they had placed in the packet on June 3, 1971, and the paper was then introduced into evidence. Nancy Wires, the State informant who was present with Webb at the time of the purchase, substantiated Webb's testimony. The only people who saw the defendant on June 3, 1971, and observed the purchase were Wires and Webb. The defendant testified on his own behalf and denied being at the Armstrong residence on June 3, 1971. His testimony was corroborated by Valla Armstrong, who with her husband, two sons and a daughter lived at the residence where the alleged sale took place. Mrs. Armstrong also stated that on June 3, 1971, Wires visited her with a friend known to her as Jeff Hicks, who was in reality agent Webb. Mrs. Armstrong stated she went into the bedroom with Wires and "shot some dope."
Defendant asserts he was denied his statutory and constitutional rights to a speedy trial. After defendant's case was remanded to the circuit court, defendant was presented with a copy of an indictment on August 30, 1974, charging the unlawful sale of heroin. Since defendant was on bond at this time, the State was required to try the defendant within 160 days of his demand for a speedy trial. (See Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b).) On September 16, 1974, defendant filed such a demand and the statutory period began to run. Defendant claims that more than 160 days, excluding delays attributed to defendant, elapsed from September 16, 1974, to the date of his trial on February 5, 1976, and suggests that our decision is controlled by a recent amendment to section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(f)). That section by its express terms is applicable only to crimes committed after March 1, 1977, and is therefore not available to defendant.
The rule which we must apply is stated in People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595, and requires commencement of a new 160-day period each time a delay is attributed to the defendant. Hence, we must determine whether between September 16, 1974, and February 5, 1976, more than 160 consecutive days passed without the occurrence of a delay which is properly attributable to defendant. An examination of the record reveals no such period, and we therefore hold that defendant's statutory right to a speedy trial was not violated. Our decision requires us to set forth only a few of the numerous motions filed by defendant from September of 1974 to February of 1976.
• 1 On February 11, 1975, defendant requested a continuance, stating that defense counsel would be engaged in another trial on the proposed trial date of February 18, 1975. The motion was granted and the cause placed on the March 17, 1975, jury call. A continuance granted because defense counsel is engaged elsewhere constitutes a delay which is properly attributable to defendant. (People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840.) Hence, the 160-day statutory period began to run anew as of March 17, 1975.
• 2 On July 22, 1975, defendant moved to continue the case, stating that his expert witness would be unable to examine the substance alleged to contain heroin before trial and also that defense counsel would be engaged in trial in another city and could not adequately prepare for both cases. Neither party has called our attention to a case which deals with a continuance requested by defendant for two reasons, one of which might be attributable to the State. Without examining whether each of the two reasons given for the request is sufficient to cause the continuance delay to be charged to defendant, we think a delay is properly attributed to the defendant if any one of several reasons for the continuance would alone be sufficient to charge the delay to defendant. Since defendant requested the continuance in part because his counsel had a conflict which would not allow him to adequately prepare for trial, the delay was chargeable to defendant.
The trial was reset for August 18, 1974, and the statutory period began to run anew as of that date. Further continuances postponed the trial date until December 1, 1975. On November 24, 1975, defendant again requested a continuance because his counsel had trials during the weeks of December 1, December 8 and December 15, which clearly caused the resulting delay to be attributed to defendant. Defendant's trial finally began on February 5, 1976. It is evident that no 160-day period elapsed between the trial and defendant's demand for speedy trial without the intervention of a delay caused or attributable to defendant. Defendant is therefore not entitled to discharge under section 103-5(b). As to defendant's assertion that he has been denied his constitutional right to a speedy trial, we find his arguments unpersuasive. It is sufficient that as heretofore described, the trial was delayed by defendant's numerous requests for continuances, thereby refuting any contention that defendant was denied his constitutional right to a speedy trial.
• 3 The defendant argues that he is entitled to a new trial because the trial court improperly denied defendant's motion for substitution of judges under section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-5(a)). There is no dispute that defendant filed his motion within 10 days after the cause was assigned to Judge O'Shea, as is required by section 114-5(a). The State argues that while defendant comes within the 10-day filing requirement of section 114-5(a), Judge O'Shea had already ruled on substantial issues in the case and defendant's motion was therefore too late. In People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208, rev'd on other grounds, 403 U.S. 946, 29 L.Ed.2d 855, 91 S.Ct. 2279, defendant had filed a written motion for substitution of judges under section 114-5(a) within 10 days after the cause had been placed on the trial call of a judge. The court ruled that because the assigned judge had already made rulings on matters going to the merits of the case, the motion was too late. Hence, the sole issue for this court to decide is whether the trial judge made any rulings going to the merits before the cause was assigned to him.
Prior to the case being assigned, the trial judge had ruled on dismissal motions and a motion to suppress eye witness identification. A motion to suppress evidence and a motion to dismiss have both been held to constitute a ruling on the merits. (See People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208, rev'd on other grounds, 403 U.S. 946, 29 L.Ed.2d 855, 91 S.Ct. 2279, and People v. Chambers, 9 Ill.2d 83, 136 N.E.2d 812.) We therefore must hold that defendant's motion for substitution of judges, while coming within the time required of section 114-5(a), was nevertheless filed too late.
• 4 Defendant contends that the State failed to establish a complete chain of custody of the heroin between the time it was first seized and its introduction at trial. It is well established that before narcotics may be admitted into evidence, the State must show sufficient continuity of possession between the time the narcotics were seized to the time they were offered into evidence, so as to negate the possibility of tampering or substitution. (People v. Anthony, 28 Ill.2d 65, 190 N.E.2d 837.) Yet, such a rule "does not require the prosecution to exclude all possibility that the articles may have been tampered with, rather, the court must be satisfied that in reasonable probability the article has not been changed in any important aspect." (People v. Marquis, 24 Ill. App.3d 653, 662, 321 N.E.2d 480, 487.) The present chain of custody extends for a period of over five years and traced the heroin through the following individuals and offices: the officer purchasing the heroin, the chemical analyst, the clerk of the circuit court of Rock Island County, the Third District Appellate Court, the clerk of the circuit court of Rock Island County on remand, the Rock Island County Court administrative office, the State's Attorney's office, the chemical analyst for reanalysis, ...