APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Armed robbery aggravated battery armed violence.
Guilty all eight counts.
Carlisle was found guilty by a jury of four counts of armed robbery, three counts of aggravated battery, and one count of armed violence. He was sentenced to concurrent terms of 18 years' imprisonment on each of the armed robbery and armed violence convictions and 5 years' imprisonment on each of the aggravated battery convictions, all to run consecutive to a 12-year sentence for armed robbery in Sangamon County. On appeal, he argues error (1) in the trial court's denial of his motion to dismiss under the 120-day rule; (2) in denial of his motion for substitution of judges; (3) in the court's refusal of his tendered instruction regarding the lesser included offense of robbery; and (4) in the ruling on his objection to the State's closing argument.
The events leading to the defendant's conviction occurred at the home of Randy Sinclair in Decatur, Illinois, on April 20, 1978. The evidence shows that the defendant and three accomplices entered the home of Sinclair and inquired as to the whereabouts of Sinclair's brother, Rodney. Apparently, the defendant and his cohorts desired to purchase drugs and believed Sinclair's brother was involved in the sale of such substances. Unfortunately for Sinclair and his guests, Rodney was not present and phone calls placed by Randy to locate him were unsuccessful. The defendant and his companions then proceeded to tie up and rob Sinclair and his three guests. Three of the individuals were also physically assaulted during this incident. At his trial, the defendant did not contend that the crimes had not occurred but instead relied on the defense of involuntary drugged condition which was rejected by the jury.
I. Denial of defendant's motion to dismiss based upon an alleged violation of the 120-day rule. (Ill. Rev. Stat. 1977, ch. 38, par. 103-5.) The record indicates that on April 21, 1978, the defendant was arrested in Sangamon County for an offense committed there. He was charged by information in Macon County on April 21 and 25, 1978, and on July 13, 1978, a grand jury returned indictments charging the defendant with the same offenses involved in the informations. On August 22, 1978, he was convicted in Sangamon County and sentenced to 12 years' imprisonment on September 20, 1978. Prior to the sentencing hearing in Sangamon County, the defendant, on September 11, 1978, filed a motion to dismiss the Macon County charges because he argued that the State had failed to comply with the 120-day statute. The defendant argues the court erred in denying this motion because the recited facts show that he was in custody for the alleged offenses and not tried within the 120-day period mandated by the statute. We reject this argument.
1, 2 There is no dispute that the defendant was in custody for more than 120 days. But it must also be shown that he has been in custody in connection with the subsequently prosecuted charges to fall within the protections afforded by the statute. (People v. Parsons (1977), 48 Ill. App.3d 618, 363 N.E.2d 396.) Here, the defendant was in custody and being prosecuted in Sangamon County rather than in Macon County. Where a defendant is in custody awaiting trial in one county and a charge is pending against him in another, he is not deemed to be in custody for the latter offense until the proceedings against him in the first county are terminated and he is held in custody for the second county. People v. Clark (1968), 104 Ill. App.2d 12, 244 N.E.2d 842.
In the case at bench, unlike Clark, the defendant was brought to Macon County pursuant to a writ of habeas corpus ad prosequendum on June 15, 1978. This was prior to the termination of the proceedings against him in Sangamon County. He also appeared in Macon County pursuant to such writs on subsequent occasions and after each such appearance was returned to Sangamon County. The defendant attempts to distinguish Clark by arguing that once Macon County initiated these proceedings by obtaining writs of habeas corpus ad prosequendum it had a duty to have the case tried within 120 days. Even if this argument was accepted, it would offer defendant little solace. The Macon County trial was held on September 25 and 26, 1978 well within 120 days of his first appearance in Macon County on June 15, 1978.
3 Moreover, the defendant cannot avail himself of the 120-day rule if the delay is occasioned by him. The standard to be applied in determining whether the delay is properly attributed to the defendant is whether he causes or contributes to the delay, and this question can only be answered by carefully examining the facts of each case. (People v. Poteat (1973), 12 Ill. App.3d 1068, 299 N.E.2d 565.) Accountability for the delay rests in the judgment of the trial court and its decision will not be disturbed unless it is clearly shown that the court abused its discretion. (People v. Jordan (1976), 44 Ill. App.3d 101, 357 N.E.2d 869.) In his application for discharge, it is incumbent upon the defendant to show that he was in custody on the instant cause in excess of the statutory period and the record must affirmatively establish this fact. People v. Jones (1965), 33 Ill.2d 357, 211 N.E.2d 261, cert. denied (1966), 385 U.S. 854, 17 L.Ed.2d 81, 87 S.Ct. 99.
Here, the defendant was taken into custody in Sangamon County on April 21, 1978. On June 15, 1978, he first appeared in Macon County pursuant to a writ of habeas corpus ad prosequendum. On this date the defendant indicated to the court that he had retained private counsel and a preliminary hearing was set for July 6, 1978. The July 6 hearing was continued until July 13 but the record does not reflect who requested this continuance. On July 13 the grand jury returned indictments in this case and the defendant was present in Macon County on July 14, 1978, also pursuant to a writ of habeas corpus ad prosequendum. Again defendant stated that he would attempt to retain counsel of his choice and that it would take ten days to two weeks to accomplish this. A plea of not guilty was then entered and the court stated that since the defendant did not have counsel, the court assumed that he would not be ready for an August jury trial. Defendant responded that this was correct. The cause was then set for a September 18 jury trial and the matter of counsel allotted for a hearing on July 31, 1978. At the July 31 hearing, the defendant for the first time requested that counsel be appointed for him. The court immediately appointed the public defender, who later that day notified the court of a conflict of interest in representing this defendant. The same day the court appointed private counsel to represent the defendant. But on August 4, 1978, this attorney filed a motion to withdraw as counsel based upon a conflict of interest and the court then appointed the attorney who represented the defendant at trial.
4 Where a continuance is granted upon the request of the defendant for the purpose of retaining counsel, the consequent delay in the proceedings is chargeable to the defendant and the running of the 120-day statute is tolled. (People v. Miller (1974), 21 Ill. App.3d 762, 316 N.E.2d 269.) It is clear from this record that much of the delay was caused by the defendant's failure to retain counsel after twice informing the court that he would do so. The trial court was correct in charging this delay to the defendant and denying his request for dismissal under the 120-day rule.
II. The court denied defendant's motion for substitution of judges which was filed September 15, 1978. This motion cited section 114-5 of the Code of Criminal Procedure of 1963 but cited no subsection. (Ill. Rev. Stat. 1977, ch. 38, par. 114-5.) It stated that the trial of the defendant was set for September 25, 1978, before Judge Rodney A. Scott and that the defendant believed that he could not receive a fair trial before Judge Scott. While the defendant had signed the motion, it was neither verified nor accompanied by an affidavit to support its allegations.
A motion for substitution of judge must comply with the statutory requirements enumerated in section 114-5 ...