APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Miguel Baez Negron, was charged in a multi-count indictment with murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) and armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2). At the conclusion of a jury trial in the circuit court of Cook County, defendant was found guilty of both murder and robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-1). He was sentenced to a term of 20 to 40 years for murder and to a term of 4 to 12 years for robbery, the sentences to run concurrently.
On appeal, defendant contends: (1) he was denied his statutory right to a speedy trial (Ill. Rev. Stat. 1975, ch. 38, par. 103-5); (2) the trial court erred, in the hearing on the State's motion for a continuance, when it denied him access to an investigator's file; (3) the trial court erred in not submitting instructions to the jury defining: (a) justifiable use of force in defense of another (Ill. Rev. Stat. 1975, ch. 38, par. 7-1); and (b) the State's burden of proof on the defense of justifiable use of force (Ill. Rev. Stat. 1975, ch. 38, pars. 7-1, 7-14, 3-2(b)); and (4) the prosecutor's prejudicial comments during closing argument denied him a fair trial.
We affirm the trial court.
Manuel Hernandez worked in a laundromat at 937 N. Kedzie Avenue, in Chicago, Illinois. On October 31, 1974, at approximately 11:10 p.m., Chicago Police Officer Richard Costanzo found Hernandez sitting on the laundromat's front window sill, bleeding from the face and shoulder. Officer Costanzo transported Hernandez to St. Anne's Hospital where Hernandez died from "blunt trauma to the head, chest and abdomen." Hernandez was also found to have a superficial gun shot wound in his right shoulder.
Juanita Lopez testified that on October 31, 1974, she and Sonja Ramos each had two shots of whiskey at the New Spot Lounge. As they left the lounge and began walking north on Kedzie, they heard a loud noise which "sounded like a shot." Ms. Lopez saw the defendant standing in front of the laundromat and asked him what was happening. The defendant told Ms. Lopez that he and another man had done something wrong and she should "hurry up and run" if she didn't want to get involved.
Ms. Lopez and Ms. Ramos ran to their home at 3223 W. Crystal. Shortly after arriving there, the two girls encountered the defendant and Santos Cancel on the back porch. The defendant was recounting how he had "kicked [Hernandez's] ass very bad." While the defendant was talking, Cancel toyed with a gun the two men had taken from Hernandez. Cancel handed the defendant some money and told him to count it and split it two ways.
Sonja Ramos, the mother of defendant's fiancee, took the stand and substantially corroborated the testimony of Ms. Lopez.
During their initial investigation into the murder of Hernandez, Chicago Police homicide investigators talked with both Ms. Lopez and Ms. Ramos. On November 2, 1974, these investigators informed Rachel Velez, the defendant's sister, that they were looking for the defendant. Later that day, the defendant surrendered himself to the police.
After being advised of his Miranda rights by homicide investigator Ben Bober, the defendant gave an oral statement concerning the incident. The defendant stated that on the evening of October 31, 1974, he and Santos Cancel were walking around the neighborhood, "in search of some money." They spotted Hernandez sitting alone in a laundromat. They asked Hernandez for a dollar but he said he didn't have any money. The defendant and Cancel then wrestled Hernandez to the ground and took $5 out of his pocket. During this struggle, the defendant kicked Hernandez once in the head and three times in the area of the stomach and chest. After they had obtained the money, the defendant heard a shot, although he did not see anyone with a gun. Defendant fled the laundromat and ran into Ms. Ramos. While the defendant told Investigator Bober that he had met Cancel only two weeks prior to the incident, defendant later testified that he had known Cancel all his life.
The defendant was interviewed later that same day by assistant State's Attorney, Steven Brodhay, and he repeated the story which he had related to Investigator Bober.
The defendant took the stand and testified that on the evening of October 31, 1974, he, Santos Cancel, Juanita Lopez, Miriam Ramos (defendant's fiancee), and Sonja Ramos (Miriam's mother) walked to a liquor store where Ms. Lopez purchased a pint of Vodka and three quarts of beer. They then returned to Sonja Ramos' home at 3223 Crystal where they drank and talked.
Subsequently, this group left Ms. Ramos' home and walked to another nearby tavern. After the defendant bought a quart of beer, the group walked down Kedzie Avenue to the laundromat.
As the defendant was sitting on a table in the laundromat drinking his beer, he heard a commotion in the rear of the store. Defendant turned and saw Cancel and Hernandez locked in a struggle. The defendant intervened and with his fist, struck Hernandez two or three times in the face. Defendant denied kicking Hernandez. When Cancel and Hernandez fell to the floor, a shot rang out. Defendant then fled the scene.
The defendant testified further that he and Cancel had never planned to rob anyone. He denied taking any money from Hernandez or splitting any money with Cancel on the back porch of Ms. Ramos' home. The defendant also denied telling either Ms. Lopez or Ms. Ramos to "hurry up and run," because he and Cancel had "just did something bad."
On cross-examination, the defendant admitted that the first time he had told anyone the story he related on direct examination was just before the start of trial, almost two years after the incident in the laundromat.
Following the presentation of all the evidence, and after having heard closing arguments, the jury deliberated and found the defendant guilty of murder and robbery. The trial court sentenced the defendant to a term of 20 to 40 years for murder and to a term of 4 to 12 years for robbery, the sentences to run concurrently. Defendant appeals.
Initially defendant contends he was denied his statutory right to a speedy trial (Ill. Rev. Stat. 1975, ch. 38, par. 103-5) when the State was granted a 60-day continuance, beyond the 120-day term, to locate missing witnesses.
1 An accused held in custody by the State must ordinarily be tried "within 120 days from the date he was taken into custody." (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a).) This statutory period may be extended for an additional 60 days if: (1) the State, despite the exercise of due diligence, has been unable to locate evidence material to the case; and (2) there are reasonable grounds to believe this evidence may be obtained at a later date. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(c).) Whether such a continuance should be granted necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter which lies within the sound discretion of the trial judge. People v. Morgan (1978), 62 Ill. App.3d 279, 378 N.E.2d 1298; see Ill. Rev. Stat. 1975, ch. 38, par. 114-4(e).
The State requested an extension of time beyond the 120-day term in order to locate two material witnesses, Juanita Lopez and Sonja Ramos. On May 21, 1976, a hearing was held on this request and the following evidence was adduced.
On May 1, 1976, approximately 3 1/2 weeks before the running of the 120-day term, Ralph Dixon, a Cook County sheriff's investigator, was assigned by the State's Attorney's office to subpoena the two witnesses in order to have them available to testify at trial. Later that same day, Dixon proceeded to 3223 West Crystal, the last known address of both witnesses, in an attempt to serve each of them with a subpoena. The building located at that address, however, was abandoned and unoccupied.
2 Dixon testified that between May 1 and May 10 he contacted the Public Aid office, Illinois Bell Telephone, the gas company, and Commonwealth Edison in an unsuccessful attempt to obtain the current address of the two witnesses. Dixon also contacted the Post Office, but his inquiries had yet to be answered.
Dixon testified further that he obtained the telephone number of Chicago Police Officer Walter Siemieniak who was assigned to the area surrounding the last place of residence of the two witnesses. Siemieniak told Dixon he believed the two witnesses were still residing in that area. Dixon enlisted Siemieniak's aid in searching for them. Between May 10 and May 17, Dixon returned to the neighborhood several times. He talked to various persons on the street, all in an attempt to ...