APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of the murders of James Smith and Randolph White (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and was sentenced to a term of 100 to 300 years. On appeal, he contends that: (1) he was denied his statutory right to a speedy trial (Ill. Rev. Stat. 1975, ch. 38, par. 103-5); (2) he was denied his constitutional right to a speedy trial; and (3) he was not proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.
On October 3, 1974, Chicago police officers found the bodies of James Smith and Randolph White in the basement of an abandoned building. A warrant for defendant's arrest was issued on November 14, 1974. Defendant was arrested and charged with the murders on March 1, 1975. On April 2, 1975, the State requested to nolle prosequi (nolle pros) the case because it lacked sufficient competent evidence against defendant. The motion was granted and defendant was released. On April 13, 1976, defendant was indicted for the murders and a warrant was issued for his arrest. On December 5, 1976, defendant was arrested for disorderly conduct and a traffic offense and the outstanding murder warrant was executed.
Prior to trial, defendant moved to dismiss the indictment alleging that he had been denied his right to a speedy trial, alleging that the nolle pros had been entered to avoid the running of the 120-day statutory period. Ill. Rev. Stat. 1975, ch. 38, par. 103-5.
At the hearing defendant's evidence established the following pertinent facts. Mrs. Stanberry, the sister of Jessie Deloach, who was also charged with the instant murders, testified that upon defendant's release from custody in April 1975, he began living with her mother. After a short residence at a second location, defendant moved in with Mrs. Stanberry where he remained until his arrest in December 1976. This arrangement was known to a number of their friends. Defendant submitted numerous documents bearing that residence as defendant's address. To her knowledge defendant never received letters from the State's Attorney's Office while at that address, nor was he contacted by any Chicago police officers.
In response to defendant's motion, the State introduced the following pertinent testimony. Investigator Smith was investigating the instant murders and defendant's name was first connected to the murders on November 14 or 15 when Scott, Deloach and Byas each gave defendant's name to Smith. The investigator made repeated efforts over a six-week period to locate defendant at various addresses and at his place of employment, but was unsuccessful. During one of his attempts to locate defendant he heard that defendant had left the State for Michigan or Mississippi. A second investigator testified that he spoke to defendant's mother, who told him that she last saw defendant on November 16 when he told her that he was leaving town because the police were looking for him.
When defendant was finally arrested on March 1, 1975, he told an investigator that he had left Chicago to go to Mississippi on October 1 or 2, 1974, and that he knew of the murders before he left. He was then informed that the bodies had not been discovered until October 3, 1974, and stated that he did not care to have any further conversation.
Assistant State's Attorney Elden was assigned to handle defendant's case in which the preliminary hearing was about to be held. After reviewing the police reports and speaking with an investigator, he realized that he could not hold a preliminary hearing since the only evidence against defendant was statements of his co-defendants. Elden communicated with his superior and another assistant State's Attorney concerning the situation and was granted two continuances until April 2, 1975. On that date his superior directed Elden to nolle pros the case because of a lack of sufficient competent evidence against defendant and Elden did so, stating his reasons on the record. He further stated that neither defendant's demand for trial nor the 120-day period entered into the consideration of this decision. At the time of the motion to nolle pros the case, Elden had no intention to reinstate the charges, nor did his superior's order indicate an intention to do so.
Assistant State's Attorney Shalgos was assigned to the courtroom where Keith Scott, Phillip Byas and Jessie Deloach were charged with offenses arising from the deaths of Smith and White. Elden spoke with him about the difficulties with defendant's case. After reviewing the evidence against defendant, Shalgos told Elden's superior that it was his conclusion that there was not enough evidence against defendant to get an indictment. During this conversation the ramifications of the 120-day rule were discussed as well as the case of People v. McAdrian (1972), 52 Ill.2d 250, 287 N.E.2d 688, but not the difference between a nolle pros and striking the case with leave to reinstate (SOL).
In early 1976, Shalgos was preparing for the trial of Scott, Byas and Deloach. In January or February, he began negotiations with Scott's attorney, which lasted until April 12, 1976, when Scott testified before the grand jury to indict defendant. After defendant's indictment, repeated attempts to locate defendant were made by police officers who visited defendant's last-known addresses and contacting his family members. These efforts were unsuccessful. Finally, defendant was arrested on December 5, 1976.
After argument, the motion to dismiss the indictment was denied.
The pertinent evidence presented at trial established the following. On October 3, 1974, Chicago police officers entered the basement of an abandoned multiple-story building located at 3743 West 19th Street. A pungent odor emanated from a trunk in the basement, and further inspection revealed a decomposed body behind the trunk. The body appeared to be that of a male and its hands were tied behind its back with an extension cord. The body and the trunk were transported to the morgue where a second decomposing body was discovered under a blanket inside the trunk. The head of the second body was covered with a plastic bag. It was stipulated that the body found outside the trunk was that of James Smith and that the body found inside the trunk was that of Randolph White. It was also established that the two had been deceased for approximately 17 days prior to their discovery.
The pathologist who conducted the autopsies on the two victims testified that James Smith had a large bullet wound in his forehead between his eyebrows and that the internal examination revealed that a bullet had lacerated his brain. Randolph White's body had six bullet wounds in the head, and death was caused by a bullet wound lacerating the brain.
Shelley Edwards, James Smith's former girlfriend, testified that she was with Smith at his apartment at 1140 South Independence on the evening of September 15, 1974. She spent the night in Phillip Byas' apartment with Smith, Randolph White, Jean Townsend, Byas and Keith Scott. She left at about 6 or 7 a.m. on the following day and drove her car to her home. About half an hour later she returned to pick up Smith who was going to drive her to work. Smith drove her to work, took the car, and was supposed to return to pick her up after work. Shortly after arriving at work, she spoke to Phillip Byas on the telephone and asked that Smith return her call. She never spoke to Smith or saw him alive again. After work she waited for Smith for several hours before accepting another ride home. She went to Phillip Byas' apartment into which Smith and White had moved and stayed there for about five days. During those five days she went upstairs to Smith and White's apartment and saw nothing amiss. She stated that defendant looked familiar but that she did not know his name.
Keith Scott, the State's chief witness, began his testimony by admitting that he had been arrested in connection with the instant homicides and had been charged with two counts of concealing a homicide. In September 1974, he lived with Phillip Byas at 1140 South Independence. Randolph White and James Smith lived on the second floor of the building. On September 15, 1974, he left his apartment at about 5 p.m. When he left Phillip Byas, Randolph White, Shelley Edwards, James Smith, Jessie Deloach and Jean Townsend were present. He returned between 11 and 11:30 p.m. and saw that Shelley Edwards and Gene Townsend were asleep on the living room floor and Phillip Byas and Deloach were asleep in a bedroom adjacent to his own. He went straight to bed.
The next morning, September 16, between 7 and 8 a.m., he was awakened by a tap on his shoulder. He saw defendant standing above him holding two revolvers. Defendant told him that they had just shot "Bubba" White (Randolph's nickname) and told him to hide the revolvers. Scott expressed disbelief but defendant assured him that it was true. Scott told him that he didn't want to get involved but was told "You are here and you are involved so there's nothing you can do." At that time Phillip Byas and Jessie Deloach came toward Scott's room. Defendant handed the guns to Scott who hid them in a car tire in a closet. Deloach then informed them that he didn't think White was dead. The other three went upstairs for a moment and then returned. Byas said that they had to clean the upstairs and defendant suggested that they decide on alibis. The three returned upstairs to clean and shortly thereafter Scott saw them carrying a bloody blanket with a body inside to the rear of the apartment and into the basement. When they returned, Scott and Deloach cleaned the blood from the first floor while Byas and defendant cleaned the upstairs. They then discussed their alibis and how to "take care" of Smith. Defendant said that if anyone talked they would "get the same thing because he wasn't going to jail for murder."
The phone rang, Byas answered it, announced that it was Shelley Edwards, and she wanted Smith to return her call at work. Smith entered the apartment shortly thereafter, and Byas relayed Miss Edwards' message. Smith attempted to return the call but was stopped by Deloach. Byas then asked Smith if he and White planned to kill him because they said he had stolen their food stamps. Scott related a conversation that took place on September 14, 1974, in which White asked Byas and Deloach whether they had stolen his food stamps. Smith denied any knowledge of the plan but Byas told him that they had already killed White. To convince Smith of this fact, Byas, Deloach and defendant took him to the basement while Scott waited at the head of the stairs. They returned and went into Byas' bedroom where Deloach and defendant were holding guns.
Scott was in his bedroom and could hear Smith plead for his life. Deloach told Smith to put his hands behind his back and tied Smith's hands with an extension cord. Smith continued to plead for his life. Scott heard Smith ask for a cigarette and then heard a crash of glass. Byas, Deloach and defendant ran from the bedroom and said that Smith had jumped from the window. Scott looked out the window but did not see Smith. He went to the front porch and saw Byas at the corner. He did not see any of the others. He heard someone at the rear of the building yell, "I got him" and as he was going to the rear he heard a single shot. He went halfway down the stairs and saw Smith slumped against a wall with a bullet hole in his forehead. Deloach and defendant were pointing guns at Smith and smoke was coming from defendant's gun.
Byas got blankets from the second floor in which to wrap Smith's body and after moving the body into the basement, he began to wrap it. Byas told Scott to get a bag in which to wrap White's body and to clean the blood and glass. Deloach had gone home at his mother's request. Byas and defendant then went to get Smith's keys so they could use Ms. Edwards' car to get a trailer. They returned between 20 and 40 minutes later with a trailer hitched to the rear of Ms. Edwards' car. Byas placed a plastic bag over White's head and defendant, Byas and Scott placed the body in a trunk which Byas' brother, Eddie, had been told to bring. Smith's body was placed in blankets. The bodies were then placed in the trailer.
Defendant and Byas rode in Ms. Edwards' car while Scott and Eddie Byas followed in separate cars. They drove around looking for a building in which to dispose of the bodies and found an abandoned building at 19th and Ridgeway. Scott parked on the corner while Byas and defendant drove into the alley out of Scott's view. After a few minutes Byas and defendant parked next to Scott and the trailer was empty. Byas told Scott to go to another location and to wait for them while they returned the trailer. When they returned, the trailer was no longer on the car. Byas told Scott to follow him so that he could "ditch" Ms. Edwards' car. They drove to the housing projects at 35th and Federal where Byas and defendant parked Ms. Edwards' car and joined Scott.
They returned to Scott's apartment and discussed their alibis. Byas decided that he had a doctor's appointment while defendant decided to make up his own. Scott was to say that he was not present at the time of the murders. Defendant again stated that if anyone talked, he would get the same thing since he was not going to be charged with murder by himself. Scott then took defendant home and Byas to his doctor's appointment.
At trial Scott identified the trunk, the blanket in which White's body was found, and White's clothing. He identified a picture of Smith's body with its hands tied by the extension cord. He also identified photographs of Ms. Edwards' car and the trailer used to remove the bodies.
In October 1974, Chicago police officers contacted Scott about the disappearance of Smith and White. Scott admitted that at that time he lied about what he knew.
On cross-examination Scott testified that Phillip Byas was his closest friend and that he had seen defendant several times before the killings. He also testified that on September 14 White had told Smith that he was going to take care of Phillip Byas and that Jessie Deloach, Byas' cousin, had overheard the conversation. In addition, during early September 1974, Byas had told Scott of an altercation between Byas and White when Byas attempted to return a gun which he had borrowed without permission.
Scott stated that the sight of the guns and the bodies caused him to be fearful of defendant. When the police first came to speak to him in October, he told them that he did not know the victims very well and that he couldn't give them any more information. At that time he feared for his life and he was afraid of defendant and of any punishment he might receive for his part in the crimes. On about November 14, the police came to his home a second time and took him into custody. Scott told an investigator and an assistant State's Attorney that he knew little of the victims and that he had last seen them on September 15. He also told an investigator that when he awoke on September 16 at 11 a.m. or 12 p.m. the only people in the apartment were Phillip Byas and Jessie Deloach. He did not see or hear anything unusual and first learned of the murders on September 17 when Byas, Deloach and defendant told him of the killings. Scott admitted at trial that this version was untrue but stated that he lied during the interview because he was afraid both of being punished for his part in the crime and of defendant and his threat. The first version was basically the alibi that had been worked out on the day of the murders. Later, the investigator told him that no one would know if he named the murderers. Scott then told the investigator that Byas, Deloach and defendant were involved in the murders. Corrections were made in his earlier statement and Scott signed it.
After speaking with the investigator he gave a signed statement to an assistant State's Attorney. He initially gave the earlier version of the events of the day of the murders but later described his participation in disposing of the bodies. The written statement described how Byas and defendant loaded the trunk and placed it on the trailer, how Scott followed defendant and Byas who were driving Ms. Edwards' car, and how Byas and defendant drove to the place where the bodies were eventually recovered. The statement also described how Scott ...