APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendant, Rodney Daniels, was convicted of murder (Ill. Rev. Stat. 1975, ch. 38, par. 7-1) and sentenced to a term of 20 to 30 years. Defendant contends: (1) he was denied his right to a speedy trial; (2) he was not proved guilty beyond a reasonable doubt; (3) the trial court erred in admitting certain photographs into evidence; and (4) he was denied a fair trial because of statements made during closing argument. We affirm.
Darden Fuller testified that at about 7 p.m. on November 1, 1975, he was in his mother's room in an apartment when he overheard an argument. He walked to the hallway and looked in the living room where he saw defendant pointing a shotgun at Timothy Brown. After Brown called defendant a "punk," defendant replied, "If you come any closer, I will shoot." As Brown took a step towards defendant, the defendant shot him in the forehead, killing him. Defendant then put the shotgun under his coat and ran past Darden Fuller and another witness, Helen Brown. Darden Fuller is decedent's nephew, and Helen Brown is decedent's sister.
Helen Brown's testimony generally corroborates Darden Fuller's testimony. Two police officers testified that they questioned her at the scene immediately after the occurrence. Although she did not mention defendant by name when questioned by the police officers, one officer testified that she said "she knows who he is or would know who he is." At the conclusion of her cross-examination, Helen Brown stated, "All I know is that he [defendant] shot my brother."
Decedent's niece, Monica Fuller, testified that shortly after the shooting, defendant told her that "he thinks he done killed my uncle, he was sorry, he didn't mean to do it, it was an accident * * *." She also testified that defendant repeated the apology and said, "I might as well turn myself in." She replied, "that was my uncle, and I am going to have to tell the police something sooner or later." Five months later, Monica Fuller told police about defendant's admission. She testified that she did not do so earlier because she believed defendant's statement that the shooting was an accident and that he would turn himself in.
Dallas Moore, defendant's brother-in-law, testified that he, the defendant, and two other relatives, went to the race track on the afternoon of the shooting. Acknowledging that they had been drinking heavily, Moore testified that he could not remember the name of the race track. He did recollect, however, that they were running "buggies" at the track, rather than horseback. Moore testified that they returned home between 6:30-6:45 p.m. and watched a particular television program at 7 p.m. He also testified that about 7:15 p.m., David Wicker and Darden Fuller arrived; approximately 10 minutes later, Daniels, Wicker, and Fuller left the house together. Moore's testimony regarding the buggy racing was contradicted by George Lalich, attorney for the Illinois Racing Board. Lalich emphasized that there was no harness (i.e., buggy) racing in Chicago on the afternoon of November 1, 1975. The only harness racing took place in the evening, beginning at 8:20 p.m.
Defendant testified in his own behalf and denied the shooting. He also denied that he told Monica Fuller he shot Timothy Brown.
Defendant contends that he was denied a speedy trial. On November 2, 1975, he was charged with the murder of Timothy Brown. His trial began on July 22, 1976. It ended in a hung jury and a mistrial on July 29, 1976. The second trial began on November 9, 1976. Defendant argues that, under the circumstances, he was denied his statutory (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a)) and constitutional (Ill. Const. 1970, art. I, § 8) right to a speedy trial.
1 The statute provides that every person in custody for an alleged offense shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by the defendant *fn1; otherwise the defendant shall be discharged from custody. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a).) The statute, as it existed, does not delineate how computation of the statutory period is made if delay is occasioned by the defendant. However, it is clear that with respect to offenses committed prior to March 1, 1977, delay occasioned by the defendant tolls the running of the statute and a new statutory period commences to run from the date to which the case has been delayed. *fn2 People v. McKinney (1978), 59 Ill. App.3d 536, 537, 375 N.E.2d 854, 855.
2 In the present case, the parties agree that defendant is chargeable with a delay to and including April 1, 1976; the 120-day statutory period would, therefore, run from that date. Defendant's first trial began on July 22, 1976, which is only 112 days from April 1, 1976. Defendant, in effect, contends that although the first trial ended in a mistrial, the 120-day period continued to run without interruption from April 1, 1976. This conclusion would result in absurd consequences, for if the first trial started within the 120-day period but ended after the period had elapsed, the defendant would have to be discharged if the trial ended in a hung jury. Consequently, we cannot construe the statute to mean that if a trial resulted in a disagreement, it should not be regarded as a trial and the defendant discharged. We believe that the right to a discharge under the statute should result from a want of prosecution by the State. The fact that the jury does not agree does not show a want of prosecution. It follows that a defendant is considered to have been tried within the meaning of the statute even though the trial ends in a hung jury. (Gillespie v. People (1898), 176 Ill. 238, 242, 52 N.E. 250, 251.) This, of course, does not mean that the accused is not entitled to a speedy retrial. See People v. Jonas (1908), 234 Ill. 56, 60, 84 N.E. 685, 686.
The statute does not, by its terms, deal with a mistrial situation. In Jonas, the court held that the statutory period begins to run anew from the date of the disagreement of a jury. However, in People v. Gilbert (1962), 24 Ill.2d 201, 204, 181 N.E.2d 167, 169-70, and People v. Bazzell (1977), 68 Ill.2d 177, 181, 369 N.E.2d 48, 49, the supreme court stated that another full statutory period does not begin to run in every instance of a mistrial. In Gilbert, the court held that the "overriding consideration is the constitutional right to a speedy trial, and where delay is not attributable to the defendant, that right is not measured by aggregating successive periods" provided in the statute. It appears, therefore, that in the event of a mistrial, the issue is whether a defendant's constitutional right to a speedy trial has been violated rather than whether the second trial commenced within the statutory period. (Cf. Gilbert, 24 Ill.2d 201, 205, 181 N.E.2d 167, 170; Bazzell, 68 Ill.2d 177, 181, 369 N.E.2d 48, 49.) We adopt this principle. But see Justice Dooley's dissenting opinion in Bazzell, 68 Ill.2d 177, 184-86, 369 N.E.2d 48, 50-51.
The constitutional right to a speedy trial cannot be defined in terms of an absolute or precise standard of time within which an accused must be given trial. (People v. Henry (1970), 47 Ill.2d 312, 316, 265 N.E.2d 876, 879.) Whether this right has been violated is a judicial question, and following a mistrial, a reasonable time test should be applied. In this regard, the record must be examined in its totality. Bazzell, 68 Ill.2d 177, 181, 369 N.E.2d 48, 49.
3-5 In this case, 112 days elapsed from the date defendant was last chargeable with a delay until the start of the first trial. Only 102 days elapsed from the date of the mistrial until the start of the second trial. The record shows that one of the stated reasons the second trial did not start sooner was because the judicious trial judge wanted to give both sides an opportunity to obtain a transcript of the first trial. Further, the record does not show that defendant was prejudiced by the time period between the first and second trial, and that period is not so extensive that prejudice should be presumed. (See People v. Love (1968), 39 Ill.2d 436, 443-44, 235 N.E.2d 819, 823-24; Henry, 47 Ill.2d 312, 316-18, 265 N.E.2d 876, 880.) The general assertion that defendant was prejudiced by the passage of time because it places a burden on his ability to defend is not sufficient to warrant discharge. (People v. Tetter (1969), 42 Ill.2d 569, 577, 250 N.E.2d 433, 437.) Moreover, when we compare the time elapsed between the mistrial and second trial in this case with the time period and the result in other cases that have been reviewed, we cannot presume defendant was prejudiced. (See Bazzell, 68 Ill.2d 177, 369 N.E.2d 48 (131 days between mistrial and start of second trial); Gilbert, 24 Ill.2d 201, 181 N.E.2d 170 (121 days between mistrial and start of second trial).) We hold, therefore, that under the circumstances of this case, defendant was not denied his statutory or constitutional right to a speedy trial.
Defendant next contends that the State did not prove him guilty beyond a reasonable doubt. He argues that the State failed to meet its burden of proof, because the testimony of the State's witnesses is contradicted and inconsistent and because he has an alibi. However, the positive testimony of just one credible witness is sufficient to sustain a conviction even though such testimony is contradicted by the defendant (People v. Moorehead (1970), 45 Ill.2d 326, 329-30, 259 N.E.2d 8, 10), and a jury is not required to accept ...