APPEAL from the Circuit Court of Will County; the Hon. ROBERT
R. BUCHAR, Judge, presiding.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant James Mrozek was indicted for murder and convicted of voluntary manslaughter after a jury trial in the Circuit Court of Will County. He received a prison sentence of from 2 2/3 to 8 years. The issues on appeal are whether the defendant was entitled to discharge under the speedy trial statute (Ill. Rev. Stat. 1975, ch. 38, par. 103-5), and whether the trial court correctly refused defendant's motions to suppress a confession and identification.
The facts as revealed during defendant's trial and combined hearing on his motions to suppress confession and identification indicate that Beverly Mrozek died of strangulation between 8 a.m. and 12 p.m. on June 7, 1974. At 6 a.m. on June 8, 1974, defendant James Mrozek, an unskilled worker with a 10th-grade education, entered the Joliet police station to complain about a beating allegedly inflicted upon him by Joliet policemen. After filing his complaint, Mrozek attempted to leave the station but was told to remain by an officer.
Sergeant Clifford Erwin began questioning Mrozek about his wife's death at 6:30 a.m. When defendant stated that he had not seen his estranged wife for more than two months, Erwin told him that he had been seen at Beverly's apartment on the morning of June 7 and that he was a suspect in the murder investigation. Defendant received Miranda warnings at 7:15 a.m., but agreed to talk with Erwin without a lawyer being present. Mrozek told Erwin that he arrived in Joliet by bus on the evening of June 6, but was unable to account for his whereabouts over the next 24 hours. During the interrogation defendant repeatedly stated that he had not slept since arriving in Joliet and that he did not kill his wife. He also made several inquiries concerning his right to remain silent.
Later in the morning Detectives Knott and Grossklaus joined Erwin in questioning Mrozek. As a result of their interrogation defendant admitted that his brother had dropped him off within a dozen blocks of Beverly's apartment at 7:30 a.m. on June 7. Defendant did not, however, admit killing his wife or being at her apartment on the day she died. Finally at 10:20 a.m. defendant requested to see an attorney, and the interrogation immediately ceased.
Defendant was charged with murder and placed in a cell with some other prisoners. At 3 p.m. Detectives Hafner and Hulbert removed defendant to an isolated cell in another part of the jail to resume questioning. The detectives did not give defendant complete Miranda warnings because, as Hafner testified, they thought he had waived them. Defendant refused to talk, however, stating that, "I don't know, maybe I should see a lawyer, I need time to think." The detectives asked if they could return later and defendant agreed.
At 6 p.m. the detectives returned to defendant's cell but he again refused to talk to them. Hafner told Mrozek that he looked nervous and should get some sleep.
When the detectives returned to Mrozek's cell at 11:25 p.m. he was lying awake on his bunk. Hafner testified that the defendant seemed to be emotionally distraught. The detectives made three attempts to get defendant to talk, but he still insisted on seeing a lawyer. At this point Detective Hulbert appeared angry and told his partner they should leave. Hafner, however, explained that his brother, who reminded him of the defendant, had once been in trouble with the law and that he was certain defendant, like his brother, would not be able to live with the memory of what he had done. So Hafner again asked defendant whether he wanted to talk and this time the defendant agreed. It is noteworthy that despite the fact Hafner had read Sergeant Erwin's report on the case, both he and Hulbert testified that they were unaware that defendant had requested to see a lawyer at 10:20 a.m.
Defendant's incriminating statements to the detectives were taperecorded the next morning in the presence of several Joliet police officers. This tape, which was admitted into evidence and played for the jury at defendant's trial, indicated that he arrived in Joliet at 7 a.m. on June 7, that he rode a bus to downtown Joliet and began drinking, that he took a cab from the bar to Beverly's apartment, that he approached Beverly about reconciling their marriage, that she rebuffed him, that a fight ensued and that the last thing he remembered was placing his hands around her throat. The psychiatrists who testified at the trial all agreed that Mrozek was suffering from amnesia which prevented him from remembering later events. As a result of Mrozek's statement, the police were able to locate the cab driver who had driven him to Beverly's apartment, and he identified defendant at the trial.
The first issue is whether defendant was denied a speedy trial. According to the record, on June 10, 1974, a criminal complaint was filed charging the defendant with the murder of Beverly Mrozek; counsel was appointed to represent defendant; and he was remanded without bail to the sheriff's custody. A preliminary hearing was held on June 25. On September 17 defendant was declared fit to stand trial after a competency hearing. On October 1 the case was continued on defendant's motion until October 15. Defendant filed a timely motion to substitute judges on October 21 which was not granted until November 7, because the judge who was originally assigned to the case was away on vacation when it was filed. At the same time, the court set a trial date of February 17, 1975, which due to holiday, was set over until February 18. On January 22, 1975, defendant filed a motion to suppress confession.
On February 18, 1975, over defendant's objection, the State was granted a continuance until March 3 due to the unavailability of a material witness. At the same hearing defendant moved for discharge under section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103-5) and a hearing was ordered for February 21. Following the hearing the motion was taken under advisement and denied on February 24. The trial court based its denial on the grounds that the motion for substitution tolled the 120-day period which did not begin to run anew until November 7, the date the motion was granted.
On March 3, 1975, the State was granted a second continuance until April 23, the date set for hearing on defendant's motion to suppress confession. On April 17 defendant filed a motion to suppress identification. The hearing on these motions was continued until April 28 due to the trial judge's unavailability, and the motions were denied on April 29 after two days of proceedings. Jury selection finally began on May 6 and the trial commenced on May 9, 1975.
• 1 The right to a speedy trial is guaranteed by both the Illinois and Federal constitutions. (Ill. Const. 1970, art. I, § 8; U.S. Const., amend. VI.) These constitutional speedy trial provisions are based on the individual's right to liberty and their whole purpose is to prevent an accused from being kept in jail at the whim of the prosecutor without having him tried on a pending indictment or information. People v. ...