APPEAL from the Circuit Court of Cook County; the Hon. FRANK
MACHALA, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, James O'Neal, was charged by indictment with the murder of Kenneth Singleton. (Ill. Rev. Stat. 1973, ch. 38, par. 9-1.) After a jury trial at which defendant appeared pro se defendant was found guilty of murder and was sentenced to a term of not less than 20 years, nor more than 30 years in the Illinois Department of Corrections.
Defendant now appeals this conviction, raising the following issues for appellate review: (1) Whether defendant received a speedy trial as prescribed by the constitutions of Illinois and the United States; (2) Whether defendant was fit to stand trial; (3) Whether defendant was denied due process of law under the constitutions of Illinois and the United States by being required to proceed to trial without a finding of fitness by a jury upon consideration of evidence; (4) Whether defendant was denied due process of law by reason of representation by incompetent counsel at trial; and (5) Whether defendant was denied due process of law when allowed to waive counsel and proceed pro se to trial. We will address these issues following a review of the testimony adduced at trial.
The testimony adduced at trial reflects that the murder of Kenneth Singleton occurred in the vicinity of 88th Street and Exchange Avenue in Chicago, Illinois on April 16, 1973. Earlier that day defendant appeared in court, at the 89th Street and Exchange Avenue police station, with his ex-wife. This court date was prompted by her efforts to obtain a "peace bond" against defendant. Defendant had allegedly threatened the lives of his ex-wife and mother-in-law.
Defendant's case was continued and he hurriedly departed the courtroom and police station. Defendant's ex-wife, mother-in-law and Kenneth Singleton also exited the police station and proceeded to Mr. Singleton's automobile, which was parked in the vicinity of 88th Street and Exchange Avenue. Mr. Singleton had driven defendant's ex-wife and mother-in-law to court.
As defendant's ex-wife, mother-in-law and Singleton approached Singleton's automobile, defendant appeared, pointing a gun at them. Defendant announced that he would kill them. Defendant walked closer and then pointed his gun at Singleton and fired. This shot struck Singleton in the stomach; Singleton fell to the ground, attempted to stand but could only support himself on his knees. At this point defendant moved closer to Singleton, stood over him, and fired a second shot into Singleton's back. Defendant then fled northbound on Exchange Avenue, entered his automobile and drove west on 88th Street.
Defendant was pursued by Don Ranos, a fireman employed by the Chicago Fire Department and eyewitness to the shooting. Ranos radioed his activity and defendant's license number to the Chicago Police Department. A Chicago Police Department investigation ensued ultimately leading to defendant's arrest, in Chicago, on August 24, 1973.
Defendant first contends that his right to a speedy trial (Ill. Rev. Stat. 1977, ch. 38, par. 103-5) had been violated by the interval of 123 days between his arrest and arraignment. Defendant was arrested on August 24, 1973, and was arraigned on December 27, 1973.
1 Our review of the record reveals that two delays within the 120-day statutory period were occasioned by defendant. A delay occurred by defendant tolls the running of the 120-day period, and a new statutory period commences to run from the date to which the case had been delayed. (People v. Donalson (1976), 64 Ill.2d 536, 356 N.E.2d 776.) Consequently, the record leaves no doubt that the delay referred to by defendant was attributable to defendant. Defendant, therefore, suffered no violation of his right to a speedy trial.
Defendant next contends that the trial court should not have allowed defendant's trial to commence in the absence of a fitness hearing. We note that a determination of defendant's fitness to stand trial is necessary only when a bona fide doubt as to defendant's fitness is raised. Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-1(c).
The record before us reflects that defendant had been found unfit to stand trial in December 1975. However, by January of 1976, defendant was discharged from the Department of Mental Health. On March 11, 1976, Dr. Kelleher examined defendant and pronounced defendant fit to stand trial. Dr. Kelleher's report to the circuit court stated, in relevant part, that:
* * * it is my opinion that this defendant is now able to understand the charges pending against him and is able to cooperate with defense counsel. He will be difficult, distrustful and litigious. * * *
2 Furthermore, the record reflects that defendant had been dissatisfied with every court appointed attorney assigned to defendant's defense. In fact, as was noted above, defendant conducted a pro se defense subsequent to defendant's dissatisfaction with the succession of attorneys. In our view, the succession of attorneys who represented defendant prior to trial does not of itself raise a bona fide doubt of defendant's fitness to stand trial. (People v. Brooks (1976), 40 Ill. App.3d 996, 353 N.E.2d 234.) Defendant's unwillingness to cooperate with counsel cannot be deemed equivalent with an inability to do so.
Finally, we must address the issue of whether defendant was denied due process of law when the circuit court allowed defendant to waive his right to counsel and proceed to trial pro se. This analysis depends upon the determination of whether the circuit court complied with ...