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People v. Valdery

OPINION FILED OCTOBER 31, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LARRY

v.

VALDERY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. CHARLES P. CONNOR, Judge, presiding. MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of conviction entered by the circuit court of Will County pursuant to a guilty verdict rendered after a jury trial.

On June 27, 1973, a young Negro male entered Jax Roast Beef restaurant in Joliet. He read the menu, placed an order, decided he did not have enough money to pay for what he ordered and then changed his order. When the cashier, Ann Marie Walker, returned to her cash register after getting approval of the overring, the customer threw a purple bag onto the open cash register drawer, pointed a pistol at the cashier and demanded that she put the money from the register into the bag. After she had done that, he grabbed the bag from her and left the restaurant.

While the customer was in the restaurant he was observed by the manager, Ken Swearingen, and the cook, George Nichols. Walker, Swearingen, and Nichols identified the defendant from the photographs shown them. Defendant had a distinctive cross-shaped tattoo on his forehead and a heart-shaped tattoo above his right elbow.

Larry Valdery was arrested for armed robbery on February 28, 1974. An indictment was returned on May 16, 1974. Defendant posted bond on June 19, 1974. The People filed a motion asking that a defense attorney be appointed for defendant on September 24, 1974. This motion was denied because defendant had posted bond. Trial was held November 4, 1974, and post-trial motion hearing and sentencing hearing were held on December 13, 1974. Notice of appeal was filed on December 17, 1974. The record was filed June 23, 1975. On July 8, 1975, Valdery asked that an appeal bond be set. He filed motions for an extension of time to file his brief on July 28, 1975, August 7, 1975, September 2, 1975, and October 8, 1975. On October 22, 1975, the People asked that Valdery's bond be revoked. On October 31, 1975, Valdery's brief was filed.

The People requested extensions of time to file their briefs on December 4, 1975, January 12, 1976, January 26, 1976, February 9, 1976, February 17, 1976, and February 24, 1976. The People's brief was filed on February 27, 1976.

Oral argument was held May 11, 1976, and a decision was rendered on August 31, 1976. The conviction was reversed because Valdery had been forced to trial without benefit of court-appointed counsel (People v. Valdery (1976), 41 Ill. App.3d 201, 354 N.E.2d 7). Mandate was issued September 22, 1976.

On October 7, 1976, the public defender was appointed and discovery was ordered. On November 17, 1976, Valdery was again released on bail.

The People's discovery was filed on November 18, 1976, and the defense discovery was filed on December 6, 1976. Valdery also filed a motion for a bill of particulars on December 20, 1976, and a motion to summon out-of-State witnesses. A motion to suppress identification and another to dismiss the indictment was filed on January 10, 1977.

The second trial began January 10, 1977. Defendant was again convicted January 17, 1977.

Defendant raises two issues on appeal: (1) whether due process precludes his conviction because three and one-half years elapsed between the date of the offense and the time of the second trial with the fundamental safeguards of assistance of counsel and ability to subpoena witnesses and where that delay substantially prejudiced defendant's ability to present a defense, (2) whether defendant was denied a fair trial by the prosecutor's comments during closing arguments in which he personally vouched for the credibility of the State's witness, and, without support in the facts adduced at trial, repeatedly accused defendant of committing other crimes, accused defendant's father of destroying evidence, and accused defense witnesses of suborning perjury.

It is the opinion of this court that this cause should be remanded for a new trial. We find that the closing arguments of the prosecutor were improper and highly prejudicial.

Before we discuss that, however, we wish to comment upon the first issue raised by defendant. The United States Supreme Court addressed itself to that issue in Barker v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182. Justice Powell discussed the right of speedy trial from the viewpoint of both the prosecution and the defense. He reiterated, and we wish to reaffirm, that the constitutional rights of the citizens of the United States are of primary importance, and are not to be abridged.

Justice Powell applied a balancing test to the situation presented to him in order to determine whether the right to speedy trial had been denied. The four factors which he considered were: (a) the length of the delay; (b) the reasons for the delay; (c) the defendant's demand for a speedy trial; and (d) the prejudice to the defendant caused by the delay.

The delay between arrest and the second trial in Barker v. Wingo was five years. The delay was caused by certain procedural matters and because Barker appealed his first conviction. At the second trial, Barker's witnesses ...


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