APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
The defendant, Robert G. Peterson, was charged by way of information with multiple offenses arising from an occurrence in Woodridge, Du Page County, July 10, 1976. Counts of intimidation and unlawful restraint were dismissed at arraignment for lack of probable cause; one count of armed violence was nol-prossed prior to trial; and a directed verdict was entered as to attempted armed robbery, burglary and an intimidation count. At the close of the jury trial the defendant was found guilty of two counts of armed violence and one count of unlawful restraint. He was found not guilty of one count of unlawful restraint and the court vacated the jury's verdict on the other count of unlawful restraint. He was sentenced to two concurrent terms of one to three years imprisonment on the two counts of armed violence.
The defendant appeals, alleging the trial court erred in denying his pretrial motion for a continuance and in thereafter denying his motion for substitution of judge in violation of sections 114-4, 114-5(a), (c), and, in part, 114-4(i), respectively, of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-4, 114-5(a), (c), and 114-4(i)). After reviewing the record and weighing the arguments presented we are of the opinion that the judgment of the Circuit Court of Du Page County should be affirmed.
Testimony at the trial reveals that the defendant and two other armed men, Richard Sheppard and David Rostech, entered the home at 6318 Arnold Drive, Woodridge, Illinois, at about 10 p.m. the evening of July 10, 1976. Present in the home were Edward Hruby, a 69-year-old man with a heart condition, and his 14-year-old granddaughter, Lisa Ferrara, and her boyfriend, John Nello, who also resided in the house. It appears the defendant announced that he wanted $3,000 from Mike Pender, who is described as the boyfriend of Hruby's daughter, Susan Pender, neither of whom were at home. The defendant advised Susan Pender over the telephone that he wanted $3,000, a gun and a briefcase or he would shoot the people in the house. The police were notified and arrived at the house, whereupon in short order, each of the armed men and the defendant left the house and were apprehended. No issues concerning the facts are raised on appeal.
The defendant first argues that under the provisions of section 114-5(a) (Ill. Rev. Stat. 1975, ch. 38, par. 114-5(a)), the trial court's refusal to transfer the case to another court after proper and timely motion for substitution of judge constituted a denial of the defendant's right to a trial before an impartial and unbiased tribunal and constitutes reversible error. The record shows that the cause was assigned for trial on November 29, 1976. On that date and just prior to trial the defendant moved for a continuance arguing the defendant's ill health; failure of the People to notify defendant of the change of address of a witness; and, the knowledgeable and voluntary withholding of that information by the People. These issues are more fully examined later in this opinion. Upon the denial of the motion for continuance the defendant moved for substitution of judge which was denied by the trial court. Thereafter the trial proceeded for six days culminating in the jury's verdict of guilty.
1 We first address the defendant's issue of the trial court's refusal to grant his motion for substitution of judge under section 114-5(a) of the statute (Ill. Rev. Stat. 1975, ch. 38, par. 114-5(a)). The right to a change of venue for prejudice of the judge is absolute. (People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675, cert. denied (1957), 355 U.S. 820, 2 L.Ed.2d 35, 78 S.Ct. 25.) The venue provisions should receive liberal rather than strict construction and should be construed to promote rather than defeat application for change of venue, particularly where prejudice on the part of the judge is charged. People v. Scott (1965), 63 Ill. App.2d 232, 211 N.E.2d 418; People v. Smith (1963), 28 Ill.2d 445, 192 N.E.2d 880; People v. Kostos (1961), 21 Ill.2d 451, 173 N.E.2d 469; People v. Dieckman (1949), 404 Ill. 161, 88 N.E.2d 433.
However, these rules are predicated upon a good-faith allegation of prejudice of the court and not for the purposes of delay. In People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675, the Illinois Supreme Court affirmed the denial of a motion for substitution of judge under the predecessor statute (Ill. Rev. Stat. 1955, ch. 146, par. 21) upon examining the colloquy between the trial court and counsel and finding that counsel suggested that the matter be put over for a month before the same judge.
"In view of this statement we conclude that the allegation of prejudice was without foundation; that the petition was filed for the purpose of delay; that the alleged prejudice of the trial judge was waived; and that the trial court properly denied the petition for change of venue." 10 Ill.2d 430, 434-35, 140 N.E.2d 679.
The defendant urges this court to follow its decision in People v. Gregory (1958), 16 Ill. App.2d 576, 149 N.E.2d 198, wherein there was a substitution of counsel and the new counsel made a pretrial motion for a continuance on the day set for trial which was denied. He thereafter made a motion for substitution of judge which was also denied. On appeal this court held it was in error to have denied the motion for substitution. The court distinguished the Davis case by reciting the colloquy between the trial court and counsel in that case, which served to negate prejudice as the true motive for the motion. The court found nothing to indicate any motive other than prejudice as the purpose of the motion for substitution of judge in the Gregory case. We believe, therefore, that the Gregory case is distinguishable on its facts from the instant case.
Illinois cases have consistently held that the trial court may take cognizance of the circumstances surrounding the motion for substitution of judge and may determine in the appropriate case that the motion is not in good faith but for delay. The most concise statement of the rule is found in Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792, where after citing the general rules as to liberal construction, absolute right to a change of venue, timeliness requirements and others, the court said:
"However, where it appears that the petitioner has by motions for continuances or other conduct attempted to delay or avoid trial prior to his motion for change of venue, the trial court can inquire into the good faith of the petitioner's motion. (See People v. Mosley
, 24 Ill.2d 565, 569[, 182 N.E.2d 658].) If it becomes apparent that the request is made only to delay or avoid trial, the denial of the petition for change of venue ...