APPEAL from the Circuit Court of Fulton County; the Hon.
CHARLES H. WILHELM, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant James Park was tried by a jury in the Circuit Court of Fulton County and was found guilty of unlawful delivery of cannabis in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 705(d)). He was sentenced to three years probation conditioned upon his serving 30 days in the county jail. On appeal defendant contends (1) that he was denied due process of law by a pre-indictment delay, and (2) that the trial court erred in denying his motion for a continuance.
On July 27, 1977, defendant was indicted for delivering cannabis on September 21, 1976, some 10 months earlier. Prior to trial defendant's motion to dismiss for pre-indictment delay and his motion for a continuance for more time to locate witnesses were both heard and denied. At trial Craig Salmon, a special agent for the Multi-County Drug Enforcement Group (MEG), testified that on September 21, 1976, he received a phone call from an informant who put him in touch with another person. Salmon asked that person to save two bags of marijuana for sale to him. Salmon then drove from his office in Peoria to Canton. He met the informant, who took him to a room in Aljeray dorm where he met defendant. After identifying himself as the person Salmon had spoken to over the phone, defendant then handed two bags of marijuana to Salmon. The only persons present were Salmon, defendant, and the informant. Salmon also testified that the MEG director had told him about a month before trial that the informant had been in an automobile accident and was paralyzed and unable to speak. When asked why defendant had not been indicted earlier, Salmon indicated that the informant had continued his work in the Canton area. Salmon guessed that the informant stopped working in the area approximately two to four months after the middle of October 1976.
Defendant, testifying on his own behalf, denied that he sold marijuana to Salmon or the informant and stated that he had been ill and unable to work on the date of the alleged transaction. He was found guilty.
As indicated above, defendant's first contention is that the 10-month pre-indictment delay constituted a denial of due process.
In United States v. Marion (1971), 404 U.S. 307, 325, 30 L.Ed.2d 468, 481, 92 S.Ct. 455, 465, the United States Supreme Court indicated that under certain circumstances pre-accusation delay resulting in actual prejudice to the defense might violate the due process clause. In United States v. Lovasco (1977), 431 U.S. 783, 790, 52 L.Ed.2d 752, 759, 97 S.Ct. 2044, 2048-49, the court stated that "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused."
1 Pursuant to Marion and Lovasco, in People v. Lawson (1977), 67 Ill.2d 449, 459, 367 N.E.2d 1244, the Illinois Supreme Court outlined the procedure to be followed when the defendant claims a denial of due process because of pre-accusation delay. The defendant must come forward initially with a clear showing of actual and substantial prejudice. If he satisfies the trial court that he has been substantially prejudiced by the delay, the burden shifts to the State to show the reasonableness, if not the necessity, of the delay. If both substantial prejudice and reasonableness of the delay are shown, the court must balance the interests of the defendant and the public in making its determination.
2, 3 Defendant contends that the unavailability of the informant to testify at trial constituted actual and substantial prejudice caused by the delay. There is no indication in the record, however, that the informant's testimony would have aided defendant. Had the informant been physically able to testify, he might have corroborated defendant's testimony, or he might have refuted it. The defendant also claims that the long delay between the alleged offense and his indictment made it difficult to remember names and locate witnesses. Defendant has made a showing of the possibility of prejudice, not actual and substantial prejudice (People v. Chicon (1977), 55 Ill. App.3d 100, 104, 370 N.E.2d 605, 608.) As the supreme court stated in People v. Lawson (1977), 67 Ill.2d 449, 459, 367 N.E.2d 1244, 1249, a showing of the possibility of prejudice is not enough, and mere assertion of inability to recall is insufficient.
4 Defendant's reliance on Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, and People v. Lewis (1974), 57 Ill.2d 232, 311 N.E.2d 685, is misplaced. Those cases did not address the issue of pre-indictment delay, and, therefore, the concepts of actual and substantial prejudice were not discussed. Although those cases might have required the State to make the informant available to defendant as a witness had the informant been able to testify, they do not require reversal of defendant's conviction in the absence of a showing of actual and substantial prejudice where the unavailability of the informant was brought about, not by the refusal of the State to disclose his identity, but by a fortuitous and tragic automobile accident occurring during a pre-indictment delay.
Because defendant has not come forward with a clear showing of actual and substantial prejudice resulting from the pre-indictment delay, the trial court was correct in refusing to dismiss the indictment.
Defendant's second contention, that the trial court erred in denying his motion for a continuance, is also without merit. The sequence of events following his indictment on July 27, 1977, may be briefly summarized as follows. Counsel was appointed to represent defendant on July 28, 1977, and on August 1, 1977, a motion was filed by defendant demanding an "immediate trial by jury." On August 22, 1977, defendant filed motions for discovery and for a bill of particulars. On the following day the State filed answers to those motions and mailed them to defendant. A supplemental answer to defendant's motion for discovery was filed and mailed to defendant on August 30, 1977. Defendant received this supplemental answer on September 1, 1977.
On August 30, 1977, the court ordered the cause set for trial on September 13, 1977. Six days before trial, on September 7, 1977, defendant moved for a continuance, alleging, inter alia, (1) that he was not aware of the exact time the offense allegedly took place until September 1, 1977, when he received the State's supplemental answer to his motion for discovery, and that such information materially changed his defense, and (2) that he needed additional time to locate students at Western Illinois University who were his neighbors on the date of the alleged offense. Because of the long pre-indictment delay, and because of the fact that students move quite frequently, defendant said he was unable to find these potential witnesses as of the date the motion was filed. After a hearing on September 8, 1977, the court denied the motion.
Defendant argues that the continuance should have been granted for the reasons stated in the motion and also so that he could have determined whether the informant was really hospitalized and unable to speak.
The statutory requirements are:
"(e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant." (Ill. Rev. Stat. 1977, ch. 38, par. 114-4(e).)
Finally, the statute states the legislative intent that:
"(h) This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 114-4(h).)
This legislative intent was emphasized by our supreme court in the case of People v. Breen (1976), 62 Ill.2d ...