APPEAL from the Circuit Court of Cook County; the Hon. FRANK
WILSON, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 26, 1978.
After a jury trial, defendant was convicted of murder and sentenced to 30 to 90 years imprisonment. On appeal the following issues are presented: whether the trial court erred in denying his motion to quash the indictment and for a discharge; and whether he was denied a fair trial by (a) prosecutorial argument and (b) the ineffectiveness of his counsel.
It is undisputed that at approximately 11 p.m. on a November evening a passing motorist noticed a body, later identified as Donald Taylor, lying on a grassy parkway along a main thoroughfare. The police were summoned and found Donald lying dead in a pool of blood from a gunshot to the back of his head and stripped to the waist with his clothing in a pile beside him.
Earlier that day Donald had visited his wife, Michelle, and his newborn daughter in the hospital and then at 7 p.m. he went to the home of his father-in-law, James Genaro. Later they went to a tavern to play pool and, upon their return to the Genaro home at 10 p.m., they entered through the back door and remained in the kitchen playing poker. Genaro said he heard the television located in the living room but neither of them determined who was in that room. During the card game Donald expressed his happiness over the birth of his daughter. At approximately 10:30 Donald left using the rear exit.
Meanwhile, at about 9:30 that evening defendant had come to the Genaro home looking for his brother, Miguel, who was married to Michelle's sister Anna and who lived in an apartment below Genaro. *fn1 He accepted an invitation from Michelle's brother, Anthony, to wait for Miguel.
At trial Anthony testified that a week prior to the incident in question defendant had expressed his love for Michelle and his desire to marry her. In Anthony's opinion defendant's feeling for Michelle was the cause of bad blood between Donald and himself. Anthony further testified that on the night in question as he, Anna, and defendant were watching television, he heard Donald, who was in the kitchen, expressing his joy over the birth of his daughter. In an apparent reply defendant mumbled unintelligibly and then made a threat to "get" Donald. Later when Donald left through the rear door defendant rose and walked toward the front door. Anthony inquired as to where he was going and he replied that he was going to talk to Donald. Anthony left with defendant and within a couple of blocks they approached Donald from behind. Anthony was ahead of defendant and called out to Donald who turned. Upon seeing defendant Donald took off his shirt and jacket and told defendant that he was not afraid of him. Defendant then positioned himself behind Donald, pulled a handgun from his waistband, and holding the weapon within 6 to 12 inches of the back of Donald's head fired once. As Donald fell to the ground defendant called Anthony's attention to a gasoline station attendant who was observing them. While they were running from the scene, defendant said he was sorry and that he had not intended to shoot Donald.
To the contrary, defendant testified that when he, Anna, and Anthony were viewing television in the living room, he heard no conversation emanating from the kitchen; that he heard the back door slam but did not know who was in the back of the house; that after the door slammed Miguel arrived and joined the group watching television; that no one left the living room until 11:30 when he, Anna, and Miguel went downstairs; that he did not express a desire to marry Michelle whom he had dated two years before but had not seen since that time; that he did not threaten to "get" Donald; that he has never carried a gun; and that he did not shoot Donald.
Defendant was arrested in Puerto Rico and returned to Chicago in May 1975. He testified that shortly after the event in question he flew to Puerto Rico to visit his mother who was ill and that he did not hear of Donald's murder until the time of arrest. Meanwhile Anthony left Chicago for Topeka, Kansas in May 1975. Because he was not available to testify at defendant's preliminary hearing on June 5, 1975, the State requested but was denied a continuance. Evidence of the condition and location of Donald's body and of the cause of his death was presented but defendant was discharged upon a finding of no probable cause. At the conclusion of the hearing defendant's counsel made a demand for trial. Subsequently, Anthony returned to Chicago and testified before the grand jury which indicted defendant for murder on July 7, 1976. Prior to trial defendant moved for discharge on grounds that he was not tried within 160 days of his trial demand. The motion was denied.
During the course of the trial it was brought out that Anthony initially told the police that he knew nothing of Donald's death. Anthony explained that he had known defendant and Miguel for many years and knew that they were Latin Kings. Therefore, motivated by fear of Latin King retaliation should he cooperate with the authorities, he initially denied knowledge of the crime. Although defendant denied that he and his brother were Latin Kings, he acknowledged that there were many members of that group in the area and that he had gone to school with some of them. During the course of cross-examination Anthony told of a prior act of Latin King retaliation committed by three unidentified members who severely beat Donald because they thought he had reported them to the police.
Defendant first contends that the trial court erred in denying his motion to quash the indictment and for a discharge. It is his position that the return of an indictment more than thirteen months after his demand for trial violated his statutory and constitutional right to a speedy trial. We disagree.
1, 2 The evil intended to be prevented by the speedy trial provision is wrongful incarceration rather than wrongful accusation as it is based upon the right of the individual to liberty. (People v. Kidd (1934), 357 Ill. 133, 191 N.E. 244.) The statutory provisions requiring a person in custody to be tried within 120 days from the date he was taken into custody (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a)) or a person on bail or recognizance to be tried within 160 days of his demand for trial (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)) unless delay is occasioned by defendant, or by circumstances not relevant here, is the legislature's interpretation and implementation of the constitutional requirement for a speedy trial. (People v. Utterback (1944), 385 Ill. 239, 52 N.E.2d 775; People v. Lowe (1965), 61 Ill. App.2d 262, 210 N.E.2d 31.) The 160-day period (or 120-day period if defendant is in custody) continues to run should the State nolle pros the charge (People v. Lee (1969), 44 Ill.2d 161, 254 N.E.2d 469; People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242), or have the charge stricken with leave to reinstate (see People v. Baskin (1967), 38 Ill.2d 141, 230 N.E.2d 208), but the period is broken and ceases to run if defendant is discharged after a finding of no probable cause unless the State has withheld evidence or otherwise acted in bad faith at the preliminary hearing so as to obtain such a discharge. (People v. Toney (1978), 58 Ill. App.3d 364, 374 N.E.2d 695; People v. Gimza (1977), 56 Ill. App.3d 477, 371 N.E.2d 1135.) The reasoning underlying this distinction was succinctly stated in Toney:
"Where a charge has been stricken with leave to reinstate, the same charge subsequently may be reinstated. After a discharge for want of probable cause, however, the proceedings may begin again only after the State secures additional evidence and files new charges against the defendant. A dismissal for lack of probable cause is a judicial determination in favor of the defendant rather than a voluntary act on the part of the State. Where charges are dismissed upon a judicial determination of no probable cause, the State has little opportunity to ...