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People v. Elliott

OPINION FILED FEBRUARY 5, 1979.

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

v.

ALBERT ELLIOTT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BENJAMIN MACKOFF and the Hon. ROBERT COLLINS, Judges, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 14, 1979.

This is an appeal from a judgment of the circuit court of Cook County convicting the defendant, Albert Elliott, of murder, after a jury trial. Upon this conviction the defendant was sentenced to a term of not less than 14 years nor more than 14 years and one day in the State Penitentiary.

The issues presented for review are: (1) whether the defendant was denied his statutory right to a speedy trial while being held in custody; (2) whether the trial court abused its discretion in granting the People a 60-day extension beyond the term time; and (3) whether the defendant was proven guilty beyond a reasonable doubt.

On April 17, 1974, the defendant was charged with the March 3, 1974, murder of his wife, Iris Elliott, by indictment.

The defendant was arraigned on May 3, 1974, and on June 17, 1974, the defendant filed a motion for a behavioral clinic examination to determine his fitness to stand trial. After the examination by the Psychiatric Institute of Cook County, appointment of a second psychiatrist at county expense, and the second examination of the defendant, a hearing was held before a jury on the issue of the defendant's fitness. On December 27, 1974, the defendant was found not fit to stand trial and was committed to the Department of Mental Health (hereinafter called "the Department"). Immediately thereafter the People were granted: (1) a motion to strike the indictment with leave to reinstate; and (2) a motion for a warrant on said indictment, to the Department, directing the Department to return him to the criminal court.

The defendant underwent examination and treatment until he was discharged from the custody of the Department, after a hearing held on March 3, 1975.

A petition for release on bail of recognizance was filed by the Attorney General when the defendant was discharged. On March 24, 1975, bond was set at $10,000 and upon motion of the People another behavioral clinic examination and fitness hearing was ordered. The defendant again petitioned the court for appointment of a second expert which petition was granted with the caveat that the fee was to be paid by the defendant.

On June 27, 1975, the defendant filed a motion in the circuit court to review the bail order. The court then granted the defendant leave to file a motion in the appellate court. On July 21, 1975, the Appellate Court, First District, ordered the defendant released on a personal recognizance. On July 23, 1975, the defendant was released.

On July 30, 1975, the defendant filed a motion to dismiss the cause. The defendant alleged that he was improperly transferred from the Department of Mental Health to the county jail until he was released on his personal recognizance by the appellate court. The defendant also alleged that the cause had not been properly reinstated after being stricken, and that he was denied a speedy trial. The motion to dismiss the indictment was denied on November 4, 1975.

A second fitness hearing before a jury was held on March 3, 1976. The defendant was found fit to stand trial and on motion of the People, the cause was reinstated.

From April 29, 1976, the cause was continued by the People. On October 5, 1976, the People sought an extension of the term in order to obtain the attendance of a witness, Daisy Dancy.

Cook County sheriff's investigator Dirk Lowry testified he was assigned to locate a witness, Daisy Dancy. He explained that Daisy Dancy was an eyewitness to the shooting. Among the agencies Investigator Lowry contacted were the Illinois Bell Telephone Company, Commonwealth Edison, the Board of Election Commissioners, the Chicago Housing Authority, the Cook County Jail, the House of Corrections, the Chicago Police Department, the Bureau of Vital Statistics and the Department of Immigration. The dockets of some of the divorce courts> were also examined, and Investigator Lowry visited the witness' last known address at 427 West 65th Street, Chicago, Illinois. Although the witness could not be located, Investigator Lowry spoke to someone at the address who advised him that the witness no longer lived at that address and no longer received mail there. Inquiry with the Post Office revealed there was no forwarding address left by the witness. Former neighbors of the witness at 6440 South Normal indicated she still frequented the neighborhood. The investigator left his name and telephone number in the event that the witness reappeared.

After all testimony the trial court found that the People had exercised due diligence in attempting to locate Daisy Dancy and that there appeared to be a possibility that the witness could be located at a later date. The ...


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