APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, Bernard Boykin, was indicted for the January 2, 1972 murder of Ronald James Pickens. His first trial on the charge, in August of 1973, ended in a mistrial when the jury was unable to reach a verdict. Defendant waived a jury for his second trial in January of 1975, was found guilty by the court, and sentenced to a term of 14 to 25 years. On appeal, defendant contends that his constitutional and statutory rights to a speedy trial were violated, and that the State failed to prove him guilty beyond a reasonable doubt.
The evidence showed that defendant and George Haney, Jr., homosexual lovers, terminated their 20-month relationship following a quarrel on December 18, 1971. Haney left the apartment the two men had shared on the third floor of a three-flat building at 1328 East 72nd Street in Chicago. A few days later, defendant burned Haney's clothing, which the latter had neglected to remove from the apartment.
For the next two weeks Haney lived with the decedent and Donald Leslie in an apartment at the Southerland Hotel near 46th and Drexel. Then, on December 31, 1971, Haney and Pickens moved to an apartment across the hall from Leslie's and commenced a homosexual relationship. This relationship was short-lived, however, as Pickens' body was found in the apartment three days later, on January 2, 1972. He had been shot in the head and chest. A pathologist testified that the deceased died as the result of a bullet wound to the head, specifically the brain, that a toxicologic examination indicated point five miligrams percent morphine, and that a contributing cause of death was acute morphine narcotism. It was stipulated that the bullets removed from the body were .32 caliber.
On the evening of January 2, 1972, Haney telephoned the police and accused defendant of the murder. Haney also told the police that the murder weapon could be found in a drawer of a china cabinet in the first floor apartment of the building at 1328 E. 72nd Street occupied by defendant's mother Rosalie Allen and her family. Police officers went to the building in search of defendant and the gun. When they arrived, they first spoke to three men sitting in a car across the street. A man who identified himself as defendant's brother, Stanley Allen, then exited from the building at 1328. Police officers entered the building and began to search for defendant's doorbell, when a man identified as the defendant entered the vestibule and said he was the man they were looking for. Defendant was taken into custody.
Other police officers then received permission to search the Allen apartment for the gun. No gun was found in the place Haney had indicated, but a .22-caliber pistol was found in Mrs. Allen's bedroom under her dresser.
Defendant contends that his constitutional and statutory rights to a speedy trial (see U.S. Const., amends. VI, XIV; Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L.Ed.2d 1, 87 S.Ct. 988; Barker v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182; Ill. Const. 1970, art. I, § 8) were violated when the trial court refused to grant his petition for discharge pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). *fn1 The factual basis for this contention is that at the time at which this case was to have gone to trial, the State's prime witness, George Haney, was hospitalized with a throat disorder, and allegedly unavailable to testify.
The record reveals that on July 29, 1974, defense counsel requested that the court set a firm date for trial. The court set September 9, 1974. On September 9, defendant answered ready for trial. On motion of the State, the case was continued to September 30. Between September 30 and December 26, the case was continued six times on motion of the State.
On December 26, the defendant again answered ready for trial. The State then indicated that its star witness, Haney, was hospitalized and that he would probably be in the hospital until at least the first week in January, due to a serious internal disorder. The State moved to continue the case to January 3 to determine Haney's condition as of that date and informed the court and counsel for the defendant that if Haney was then unable to testify, the State would request an extension beyond the 120-day term. The case was continued to January 3, 1975. On that day, defendant again answered ready for trial. The State reported that Haney was still hospitalized and indicated that it would file a motion for an extension of the term. Defendant demanded strict proof of the State's need for an extension. The case was continued to January 6, the 119th *fn2 day of defendant's term. On the 6th, the court considered the State's motion for an extension. Defendant then moved for discharge in a petition which challenged whether the State had exercised due diligence in bringing Haney before the court to testify. The court set a hearing for the next day. At that hearing, the court heard the testimony of Haney's attending physician, Dr. Stron. Dr. Stron testified that Haney was experiencing chest pains and some difficulty in swallowing after eating and when placed in stressful situations. He stated that Haney was undergoing treatment for his condition and that, while he was able to walk and speak without difficulty, in Dr. Stron's opinion, the physical well-being of his patient and the plan of treatment would be endangered by his being placed in a stressful situation. Dr. Stron anticipated that Haney would be better able to undergo stress in about two weeks.
The essence of defendant's speedy trial argument is that by requesting numerous extensions from the court while Haney was available to testify, without any reason other than its own convenience, the State failed to exercise due diligence in bringing defendant to a speedy trial. Defendant maintains that the State wanted to delay defendant's trial merely for its own convenience and that it feared a second trial might once again result in a hung jury. Defendant also contends that there was no proof that Haney was unable to testify. Counsel points out that the hospital records introduced at the hearing indicated that Haney had checked himself out of the hospital on Christmas Day, 1974. Only Dr. Stron's opinion, based primarily on what he had heard from prior treating physicians, indicated that Haney should not (as opposed to could not) testify.
Defendant relies on this court's opinion in People v. Bey (1st Dist. 1973), 12 Ill. App.3d 256, 298 N.E.2d 184, in which we stated that in requesting an extension of the term under section 103-5(c), the State is required to affirmatively demonstrate its diligence in attempting to obtain evidence material to the case. Defendant also relies on People v. Shannon (1st Dist. 1975), 34 Ill. App.3d 185, 340 N.E.2d 129, where we held that the State had failed to establish due diligence by its failure to locate its witnesses until just a few days before the trial was to commence.
• 1 We believe that the State has made a sufficient showing of diligence, and that it was within the discretion of the trial court to grant the petition for an extension. Defendant's argument was specifically rejected by this court in People v. Robinson (1st Dist. 1976), 41 Ill. App.3d 433, 354 N.E.2d 551. In Robinson, a material witness became unavailable to testify against the defendant when she was required to leave the State to care for her sister who was seriously ill. Defendant argued on appeal that the State was not diligent because it did not bring the case to trial while the witness was available and because it allowed the witness to leave the State. We stated:
"While we agree that a criminal trial should not be unnecessarily delayed, we find no mandate in the language of the Four Term Act (Ill. Rev. Stat. 1973, ch. 38, par. 103-5) which requires that a person held in custody be tried within a shorter period than 120 days. Furthermore, we find no merit in defendant's contention that the State's failure to bring this case to trial sooner should have been the determinative factor in the trial court's evaluation of the State's diligence. Manifestly, it was precisely ...