APPEAL from the Circuit Court of Pope County; the Hon. HENRY
LEWIS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the Circuit Court of Pope County, defendant Randall Keagbine, was convicted of murder and armed robbery. Defendant appeals from his conviction contending that his waiver of a jury trial was involuntary and further contending that he was denied his statutory right to a speedy trial.
The facts established at trial revealed that defendant and two acquaintances, who testified for the State, committed an armed robbery of the Cox's Hillybilly Store in Renshaw, Illinois, and that during the commission of the offense, defendant struggled with the owner of the store and shot and killed him with a .16-gauge shotgun.
Prior to trial, defendant filed a motion to compel the prosecution to disclose whether it would request a death penalty hearing if defendant were convicted of murder. In the motion, defendant alleged that disclosure of this fact was necessary because it would enable him to attack the constitutionality of the Illinois death penalty act and to file certain motions designed to afford defendant all possible procedural safeguards in a capital case. At a hearing, the State objected to this disclosure and the motion was denied. The court, however, requested the State to disclose its course of action in this regard to simplify matters.
Three months later, defendant, his attorney and the State entered into a stipulation in open court whereby defendant waived his right to a jury trial in return for the State agreeing not to seek the death penalty on the murder charge. After fully admonishing defendant of his rights to a jury trial, the court accepted a written waiver form signed by defendant.
On appeal, defendant contends that his waiver of a jury trial was not voluntary, alleging that the State's failure to reveal its intentions concerning the death penalty was used to create fear and confusion in defendant and to force a jury waiver. He further alleges that the death penalty could not be imposed in any event because, in his opinion, the Illinois death penalty law is unconstitutional and, alternatively, because the State could not have legally sought the death penalty where the presence of one statutory mitigating factor, namely, that defendant had "no significant history of prior criminality," would preclude the imposition of a death sentence. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c) and 9-1(g).) The State responds that defendant's fear of a possible death sentence did not render invalid a knowing and intelligent waiver of a jury trial. It further argues that even if the death penalty could not have been imposed because of some constitutional defect in the statute that fact would likewise not affect the voluntariness of the waiver. In addition, the State argues that the existence of a single mitigating factor does not per se preclude a sentence of death and further argues that, in any event, the record fails to demonstrate that defendant had no significant history of prior criminality where he had apparently participated in at least two other armed robberies.
1 In People v. Coleman (1975), 32 Ill. App.3d 949, 337 N.E.2d 269, a case similar to the present one, the defendant alleged in a post-conviction proceeding that the assistant state's attorney had told him that the State would ask for the death penalty if the case proceeded to trial but would make no such request if defendant consented to a bench trial. The court, in rejecting defendant's argument that his waiver of a jury trial was coerced because of the State's conditioned leniency concerning the death penalty, noted that defendant's right to a jury trial was not violated merely because he wanted to avoid the possibility of receiving a death penalty. We agree with Coleman and hold that an otherwise valid waiver of trial by jury is not rendered involuntary solely because the State promised that it would not seek the death sentence if defendant waived his right to such a trial. This holding, we believe, is consistent with the long line of cases holding that a guilty plea, motivated by an accused's desire to avoid the death penalty, is not invalid so long as that plea was knowingly and intelligently entered. (Brady v. United States (1970), 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463; Parker v. North Carolina (1970), 397 U.S. 790, 25 L.Ed.2d 785, 90 S.Ct. 1458; People v. Scott (1971), 49 Ill.2d 231, 274 N.E.2d 39; People v. Wilbourn (1971), 48 Ill.2d 187, 268 N.E.2d 418; People v. Salerno (1977), 54 Ill. App.3d 806, 370 N.E.2d 137.) If it is permissible for a defendant to plead guilty under such circumstances and thereby waive his right to a jury trial, his right to confront his accusers and his right to counsel, it is certainly permissible for a defendant, upon receiving a promise of the State not to seek the death penalty, to waive a jury trial.
Defendant's contentions, that his waiver of a trial by jury was invalid because the death penalty statute is, in his opinion, unconstitutional, and therefore the court could not impose a sentence of death, are likewise without merit. The present Illinois death penalty statute has not been held unconstitutional and is presumed to be valid. (People v. Adduci (1952), 412 Ill. 621, 108 N.E.2d 1.) Furthermore, even if it would be unconstitutional to impose the death penalty under the present statutory framework, the Supreme Court in Parker made it clear that the unconstitutionality of the statute would not render a guilty plea or consequently a waiver of a jury trial involuntary. (Parker v. North Carolina (1970), 397 U.S. 790, 795-96, 25 L.Ed.2d 785, 791, 90 S.Ct. 1458, 1461.) Parenthetically, the death-penalty statute, applicable at the time the defendant in Coleman went to trial and which was allegedly used by the State as a bargaining tool to secure a jury waiver, was later found to be unconstitutional.
2 We note that the present defendant was fully admonished of his rights to a trial by jury, was well aware of the possible sentences he could receive upon conviction, and voluntarily and knowingly chose to enter into a bargain arrangement with the State. Having received the benefits of his bargain, defendant can have little cause to assert subsequently that the State could not have lawfully asked for the death penalty. This is especially true where the death penalty statute is presumed to be constitutional and where it was arguable that there were "no mitigating factors sufficient to preclude the imposition of the death sentence" (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(g)) had the bargain not been made. Certainly then, defendant's decision to waive a trial by jury in favor of a bench trial was knowingly, intelligently and voluntarily entered.
Defendant next contends that he was denied his right to a speedy trial because more than 120 days elapsed from the time of his arrest until the time of trial in violation of section 103-5 of the Criminal Code (Ill. Rev. Stat. 1977, ch. 38, par. 103-5). The State counters that defendant was brought to trial well within the 120-day period established by statute, where the running of the statutory period was suspended by numerous delays chargeable to defendant. Defendant, however, contends that the delays were attributable to the State. In the alternative, he contends that notwithstanding any periods of delay, for which he may have been responsible, the trial was still not held within the applicable statutory period.
To determine whether defendant was denied his right to a speedy trial pursuant to section 103-5 of the Criminal Code, it is necessary to recount a chronology of the events leading up to defendant's trial. Defendant was arrested on November 8, 1977, and charged with armed robbery and murder. On November 30, 1977, defendant filed a discovery motion and a motion for a bill of particulars. The State's initial answer to defendant's discovery motion was filed with the court on December 21, 1977. On December 28, 1977, defendant filed two more motions. One was a motion to compel the prosecution to disclose whether it would request a death penalty hearing, which motion was denied, and the other was a motion to suppress evidence illegally seized. In his motion to suppress, defendant alleged that various items, including the .16-gauge shotgun, found in certain bags, were illegally seized from an automobile by Paducah police officers pursuant to a warrantless search. No action was taken on defendant's suppression motion until February 3, 1978, at which time defendant sought a continuance of a hearing scheduled the following day on that motion. In an affidavit attached to the motion for continuance, defense counsel alleged that certain information necessary for a proper presentation of the suppression motion had not been obtained and that it was therefore necessary to file an amended motion for a bill of particulars. In this amended motion, defendant requested the address and place where the shotgun was recovered, the date and time of the seizure, the names of the owners or occupants of the premises and the names of the police officers who recovered the shotgun. At a hearing on February 10, 1978, the State objected to portions of defendant's original and amended motions for a bill of particulars. In part, the State argued that defendant was seeking discovery through the guise of a bill of particulars. Defendant responded that he had not received various information requested from the State and was unable to prepare a defense. The court reserved ruling on defendant's two motions and ordered the State to answer the original and amended bill of particulars as it saw fit, at which point the court would determine the propriety of the responses. Defense counsel then requested leave to withdraw the motion to suppress alleging that he had not obtained the information necessary to argue the motion, such as the names and addresses of the police officers involved in the search. The motion was granted. We note, however, that the State announced that defendant was free to examine its entire file and that the names of the officers investigating the offense had been furnished to defendant in the State's first compliance with discovery in December of 1977.
On February 22, 1978, the State refused to answer the original and amended motion for a bill of particulars except for giving the date, place and time of the offense. On the same date, the State filed a second answer to defendant's motion for discovery, in which it revealed that two officers of the Paducah Police Department had recovered the .16-gauge shotgun on the premises of Erick and Gina Haney, who had apparently given the officers consent to make the search. Defendant acknowledges in his brief that upon receipt of this discovery material, it became clear that there was little or no merit to his motion to suppress evidence; however, it is puzzling that defendant had abandoned his motion to suppress on February 10, 1977, some 12 days prior to the day he allegedly learned that it would be futile to pursue this motion. On February 23, 1978, defendant withdrew his amended motion for a bill of particulars, admitting that the requested information had been provided in the discovery materials.
While defendant was pursuing the various motions discussed above, he and his two co-defendants, who subsequently pleaded guilty pursuant to a plea arrangement, filed numerous motions seeking the substitution of various judges. Following various judge substitutions, Judge Henry Lewis, from another judicial circuit, was assigned to hear these cases.
On February 23, 1978, the parties discussed the scheduling of defendant's trial so as not to violate the 120-day rule. The court noted that previous delays because of the various judge substitutions had tolled the speedy trial statute and set the trial for March 20, 1978, to which the parties' agreed. On March 15, 1978, the State filed a motion to assess delay, requesting that certain delays allegedly attributable to defendant be assessed for the purpose of suspending the running of the 120-day rule. Following a hearing the court assessed a delay of 44 days against defendant attributable to the filing of the motion to suppress. Thereafter, the State requested and received a continuance and defendant waived a jury trial, which resulted in the bench ...