APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Jake Crosby was fatally shot during the early evening hours of January 24, 1973. The defendant, Walter Grant, was arrested the following day and bail was denied. On March 13, 1973, a preliminary hearing was held. An indictment was subsequently returned against Grant, Alexander Anderson and Samuel Green, charging them with attempt armed robbery and murder. Grant's motion for severance was allowed and he was tried separately by a jury. At the close of the State's evidence, the court granted the defendant a directed verdict on the attempt armed robbery charge. The murder charge was submitted to the jury and it found Grant guilty of voluntary manslaughter. He was sentenced to a term of 6 years, 8 months to 20 years in the penitentiary.
Grant appealed to this court challenging his conviction on five grounds: (1) that he was not brought to trial within the 120-day period required by the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5); (2) that he was denied his constitutional right to a prompt preliminary hearing; (3) that evidence of weapons unconnected with the crime of which he was charged was improperly admitted; (4) that the State engaged in improper closing argument, and (5) that his sentence was excessive. This court, in the original appeal, considered only the speedy trial issue and reversed his conviction. (People v. Grant (1976), 42 Ill. App.3d 790, 356 N.E.2d 933.) The supreme court reversed the appellate court's judgment and remanded the cause to this court for consideration of the other issues. People v. Grant (1977) 68 Ill.2d 1, 368 N.E.2d 909.
Testifying for the State, Darnell Clay asserted that on January 24, 1973, at approximately 5:15 p.m., he observed Grant, Anderson and Green coming from a club called the "Spy Love Center" which was located at 1838 South Ridgeway Avenue, Chicago. Clay observed the butt of a shotgun protruding from under the three-quarter length black coat Grant was wearing. A few minutes later, as Clay was walking along Hamlin Avenue, he heard someone behind him say "hold it" or "stop." Clay turned and saw Grant on the sidewalk in front of a house which was located about three houses north of the corner of 18th and Hamlin. Grant was holding the shotgun so that the barrel was pointing in the air over his right shoulder. Clay also observed a man, later identified as Jake Crosby, on the porch of the house.
Clay stated that Crosby fired three shots. Grant started to run, reaching the corner of 18th and Hamlin. However, he then returned to the house and "sort of looked around." Crosby stuck his hand out of the doorway of the building. Grant thereupon fired twice and Crosby answered with one more shot. The defendant then stumbled over a small fence chain in the yard and leaned against a tree.
Harold Crosby, the 13-year-old grandson of the deceased, testified that at 5:30 p.m. on January 24, 1973, he was in his home located at 1858 South Hamlin. He heard approximately four gun shots and when he looked out the window about a minute later, he saw a boy wearing a black coat and carrying a long gun running south. Harold went downstairs where he found his grandfather lying in the vestibule; his grandfather was bleeding from the chest and had a gun in his hand. The gun was later identified as a five-shot, .38-calibre revolver and had four expended shells and one live shell in its chamber.
Officer Raynor Ricks, of the Chicago Police Department, stated that he arrived at 1858 South Hamlin at approximately 5:30 p.m., after responding to a radio call. A few minutes later, a second radio call anounced a "[m]an shot in the alley at 1838 or 40 South Ridgeway." Since this address was less than a block away, he and his partner ran to investigate this second call. On arrival at 1838 South Ridgeway they observed two men running up the back stairs of the building. One of the two men, Darnell Clay, was apprehended.
Officer Gilbert Broderick, also of the Chicago Police Department, testified that on January 24, 1973, he arrived at 1838 South Ridgeway at approximately 5:40 p.m. The defense counsel then requested a side-bar conference at which time he objected to Officer Broderick making any statements as to the discovery in the building of certain weapons which were unconnected with the shooting. The court overruled the objection with the limitation that the State not exhibit any of the other weapons found but that they could be described. Broderick then testified that in the basement of the building at 1838 South Ridgeway he found a pistol, a sawed-off rifle, a sawed-off shotgun and over 100 rounds of ammunition. The shotgun appeared to have been recently fired.
Daniel J. Pierce, an assistant State's attorney for Cook County, testified that he interviewed Clay late on the evening of January 24, 1973. The defense counsel raised an objection to any statements from Pierce which would tend to impeach Clay's testimony on the manner in which Grant was holding the shotgun immediately before Jake Crosby fired his revolver. The State contended that such testimony from Pierce was proper since Clay was a hostile witness. The court overruled the objection. Pierce testified that when Clay gave his statement he also demonstrated the manner in which Grant was holding the weapon. According to Pierce, Clay indicated that the defendant's left hand was placed midway on the barrel and his right hand was on the front of the weapon, near the trigger. The barrel of the shotgun was facing outward.
Pierce also took both an oral and written statement from Grant. In these statements Grant asserted that on the evening of January 24, 1973, he was playing a pinball machine in a neighborhood store. As he was leaving, he jumped in line in front of Jake Crosby. Crosby became angry and pulled a gun. Grant left and went to 1838 South Ridgeway where someone handed him a shotgun. He then returned to the store but Crosby was not there. As he walked back towards the 1838 Ridgeway building, he encountered Crosby on Hamlin. Crosby shot once. Grant tried to get away but slipped and fell. He then tried to hide behind a tree but Crosby hit the tree. The defendant fired one shot; the second shot "just went off." He was uncertain where the gun was pointed when it went off.
W.C. Dabbs was the owner of the grocery store where the altercation between Grant and Crosby allegedly took place. He testified that Jake Crosby came in a little after dark on January 24, 1973, and purchased a can of tobacco. At the time there were only about three people in the store and he did not see Grant that evening. The defendant presented no witnesses but rather relied upon a claim of self-defense.
1 The first issue we consider is whether Grant is entitled to a reversal of his conviction because he was denied his constitutional right to a prompt preliminary hearing. (Ill. Const. 1970, art. I, § 7.) The record shows that there was a 47-day delay between Grant's arrest and the holding of a preliminary hearing. Even assuming that the delay impinged upon the defendant's rights under article I, section 7 of the 1970 Constitution, reversal is not an available remedy.
In People v. Hendrix (1973), 54 Ill.2d 165, 169, 295 N.E.2d 724, 727, the Illinois Supreme Court, while holding the defendant's rights under section 7 were not violated, expressed the following view of the constitutional provision:
"The second paragraph of section 7 does not provide a grant of immunity from prosecution as a sanction for its violation. Nor would an interpretation make sense which required the dismissal of the present indictment and the discharge of the defendant, to be ...